Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.1 Page 1 of 225
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
JAMAR HAYNES, SCOTT Case No. 2:19-cv-12427 WHITEHILL, MATTHEW BROWNLEE, BENJAMIN BISCHOFF, STEPHEN LESZCZYNSKI, CASSANDRA JURY TRIAL DEMANDED MORRISON, ROBERT RANEY, and DAVID POLLEY, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
FORD MOTOR COMPANY, a Delaware corporation,
Defendant.
CLASS ACTION COMPLAINT
010825-11/1171942 V1 Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.2 Page 2 of 225
TABLE OF CONTENTS Page
INTRODUCTION ...... 1
JURISDICTION ...... 7
VENUE ...... 9
PARTIES ...... 9
Plaintiffs ...... 9
1. Jamar Haynes – Georgia ...... 9
2. Cassandra Morrison – Illinois ...... 11
3. Benjamin Bischoff – Louisiana ...... 13
4. Scott Whitehill – Nebraska ...... 14
5. David Polley – Ohio ...... 16
6. Matthew Brownlee – South Carolina ...... 18
7. Robert Raney – South Dakota...... 19
8. Stephen Leszczynski – Wisconsin ...... 21
Defendant ...... 23
1. Ford Motor Company ...... 23
FACTUAL ALLEGATIONS ...... 23
Coastdown testing ...... 23
The coastdown results are used to create fuel economy information posted on vehicles’ windows and used in advertising...... 26
Ford admits improper coastdown testing...... 31
1. 2019 Ranger ...... 31
CAFE standards provide manufacturers with credits for low emissions...... 35
010825-11/1171942 V1 - i - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.3 Page 3 of 225
Criminal investigation ...... 41
Mechanism of coastdown cheating ...... 42
F-150 test results ...... 46
Ford’s History of Cheating ...... 55
Ford advertising for the Ranger emphasizes fuel economy...... 57
Ford promotes the F-150 as best in class for fuel economy or publishes MPG estimates to beat its competition...... 58
Economic harm ...... 67
TOLLING OF THE STATUTE OF LIMITATIONS ...... 67
Discovery rule tolling ...... 67
Fraudulent concealment tolling ...... 68
Estoppel ...... 69
CLASS ALLEGATIONS ...... 69 COUNT 1 VIOLATION OF THE GEORGIA FAIR BUSINESS PRACTICES ACT (GA. CODE ANN. § 10-1-390 ET SEQ.) ...... 73 COUNT 2 VIOLATION OF THE GEORGIA UNIFORM DECEPTIVE TRADE PRACTICES ACT (GA. CODE ANN § 10-1-370 ET SEQ.) ...... 74
COUNT 3 BREACH OF CONTRACT (BASED ON GEORGIA LAW) ...... 75 COUNT 4 FRAUDULENT CONCEALMENT (BASED ON GEORGIA LAW) ...... 77 COUNT 5 VIOLATION OF THE ILLINOIS CONSUMER FRAUD AND DECEPTIVE BUSINESS PRACTICES ACT (815 ILCS 505/1, ET SEQ. AND 720 ILCS 295/1A) ...... 82
COUNT 6 BREACH OF CONTRACT (BASED ON ILLINOIS LAW) ...... 86 COUNT 7 FRAUDULENT CONCEALMENT (BASED ON ILLINOIS LAW) ...... 88
010825-11/1171942 V1 - ii - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.4 Page 4 of 225
COUNT 8 VIOLATION OF THE LOUISIANA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW (LA. REV. STAT. § 51:1401 ET SEQ.) ...... 93 COUNT 9 BREACH OF CONTRACT (BASED ON LOUISIANA LAW) ...... 95 COUNT 10 FRAUDULENT CONCEALMENT (BASED ON LOUISIANA LAW) ...... 97 COUNT 11 VIOLATION OF THE NEBRASKA CONSUMER PROTECTION ACT (NEB. REV. STAT. § 59-1601 ET SEQ.) ...... 102 COUNT 12 BREACH OF CONTRACT (BASED ON NEBRASKA LAW) ...... 103 COUNT 13 FRAUDULENT CONCEALMENT (BASED ON NEBRASKA LAW) ...... 105 COUNT 14 VIOLATION OF THE OHIO CONSUMER SALES PRACTICES ACT (OHIO REV. CODE ANN. § 1345.01 ET SEQ.) ...... 105
COUNT 15 BREACH OF CONTRACT (BASED ON OHIO LAW) ...... 108 COUNT 16 FRAUDULENT CONCEALMENT (BASED ON OHIO LAW) ...... 110 COUNT 17 VIOLATION OF THE SOUTH CAROLINA UNFAIR TRADE PRACTICES ACT (S.C. CODE ANN. § 39-5-10 ET SEQ.) ...... 115 COUNT 18 BREACH OF CONTRACT (BASED ON SOUTH CAROLINA LAW) ...... 116 COUNT 19 FRAUDULENT CONCEALMENT (BASED ON SOUTH CAROLINA LAW) ...... 117 COUNT 20 VIOLATION OF THE SOUTH DAKOTA DECEPTIVE TRADE PRACTICES AND CONSUMER PROTECTION LAW (S.D. CODIFIED LAWS § 37-24-6) ...... 123 COUNT 21 BREACH OF CONTRACT (BASED ON SOUTH DAKOTA LAW) ...... 123
010825-11/1171942 V1 - iii - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.5 Page 5 of 225
COUNT 22 FRAUDULENT CONCEALMENT (BASED ON SOUTH DAKOTA LAW) ...... 125 COUNT 23 VIOLATION OF THE WISCONSIN DECEPTIVE TRADE PRACTICES ACT (WIS. STAT. § 110.18) ...... 130 COUNT 24 BREACH OF CONTRACT (BASED ON WISCONSIN LAW) ...... 131 COUNT 25 FRAUDULENT CONCEALMENT (BASED ON WISCONSIN LAW) ...... 133
Claims brought on behalf of the other state classes ...... 138 COUNT 26 VIOLATION OF THE ALABAMA DECEPTIVE TRADE PRACTICES ACT (ALA. CODE § 8-19-1 ET SEQ.) ...... 138 COUNT 27 VIOLATION OF THE ALASKA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION ACT (ALASKA STAT. ANN. § 45.50.471 ET SEQ.) ...... 140 COUNT 28 VIOLATION OF THE ARIZONA CONSUMER FRAUD ACT (ARIZONA REV. STAT. § 44-1521 ET SEQ.) ...... 141 COUNT 29 VIOLATION OF THE ARKANSAS DECEPTIVE TRADE PRACTICES ACT (ARK. CODE ANN. § 4-88-101 ET SEQ.) ...... 143 COUNT 30 VIOLATIONS OF THE CALIFORNIA UNFAIR COMPETITION LAW (CAL. BUS. & PROF. CODE § 17200 ET SEQ.) ...... 144 COUNT 31 VIOLATIONS OF THE CALIFORNIA FALSE ADVERTISING LAW (CAL. BUS. & PROF. CODE § 17500 ET SEQ.) ...... 148 COUNT 32 VIOLATION OF THE COLORADO CONSUMER PROTECTION ACT (COLO. REV. STAT. § 6-1-101 ET SEQ.) ...... 152 COUNT 33 VIOLATION OF THE CONNECTICUT UNFAIR TRADE PRACTICES ACT (CONN. GEN. STAT. § 42-110A ET SEQ.) ...... 153 COUNT 34 VIOLATION OF THE DELAWARE CONSUMER FRAUD ACT (DEL. CODE TIT. 6, § 2513 ET SEQ.)...... 154
010825-11/1171942 V1 - iv - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.6 Page 6 of 225
COUNT 35 VIOLATIONS OF THE FLORIDA UNFAIR AND DECEPTIVE TRADE PRACTICES ACT (FLA. STAT. § 501.201 ET SEQ.) ...... 155 COUNT 36 VIOLATION OF THE HAWAII ACT § 480-2(A) (HAW. REV. STAT. § 480 ET SEQ.) ...... 159 COUNT 37 VIOLATION OF THE IDAHO CONSUMER PROTECTION ACT (IDAHO CODE ANN. § 48-601 ET SEQ.) ...... 160 COUNT 38 VIOLATION OF THE INDIANA DECEPTIVE CONSUMER SALES ACT (IND. CODE § 24-5-0.5-3) ...... 162 COUNT 39 VIOLATION OF THE IOWA PRIVATE RIGHT OF ACTION FOR CONSUMER FRAUDS ACT (IOWA CODE § 714H.1 ET SEQ.) ...... 164 COUNT 40 VIOLATION OF THE KANSAS CONSUMER PROTECTION ACT (KAN. STAT. ANN. § 50-623 ET SEQ.) ...... 165 COUNT 41 VIOLATIONS OF THE KENTUCKY CONSUMER PROTECTION ACT (KY. REV. STAT. § 367.110 ET SEQ.)...... 166 COUNT 42 VIOLATION OF THE MAINE UNFAIR TRADE PRACTICES ACT (ME. REV. STAT. ANN. TIT. 5, § 205-A ET SEQ.) ...... 170 COUNT 43 VIOLATION OF THE MARYLAND CONSUMER PROTECTION ACT (MD. CODE ANN., COM. LAW § 13-101 ET SEQ.) ...... 171 COUNT 44 VIOLATION OF THE MASSACHUSETTS GENERAL LAW CHAPTER 93(A) (MASS. GEN. LAWS CH. 93A, § 1, ET SEQ.) ...... 172 COUNT 45 VIOLATION OF THE MICHIGAN CONSUMER PROTECTION ACT (MICH. COMP. LAWS § 445.903 ET SEQ.) ...... 172 COUNT 46 VIOLATION OF THE MINNESOTA PREVENTION OF CONSUMER FRAUD ACT (MINN. STAT. § 325F.68 ET SEQ.) ...... 174 COUNT 47 VIOLATION OF THE MINNESOTA DECEPTIVE TRADE PRACTICES ACT (MINN. STAT. § 325D.43-48 ET SEQ.) ...... 175
010825-11/1171942 V1 - v - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.7 Page 7 of 225
COUNT 48 VIOLATION OF THE MISSISSIPPI CONSUMER PROTECTION ACT (MISS. CODE. ANN. § 75-24-1 ET SEQ.) ...... 176 COUNT 49 VIOLATION OF THE MISSOURI MERCHANDISING PRACTICES ACT (MO. REV. STAT. § 407.010, ET SEQ.) ...... 177 COUNT 50 VIOLATION OF THE MONTANA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION ACT OF 1973 (MONT. CODE ANN. § 30-14-101 ET SEQ.) ...... 181 COUNT 51 VIOLATION OF THE NEVADA DECEPTIVE TRADE PRACTICES ACT (NEV. REV. STAT. § 598.0903 ET SEQ.) ...... 182 COUNT 52 VIOLATION OF THE NEW HAMPSHIRE CONSUMER PROTECTION ACT (N.H. REV. STAT. ANN. § 358-A:1 ET SEQ.) ...... 184 COUNT 53 VIOLATION OF THE NEW JERSEY CONSUMER FRAUD ACT (N.J. STAT. ANN. § 56:8-1 ET SEQ.) ...... 185 COUNT 54 VIOLATION OF THE NEW YORK GENERAL BUSINESS LAW (N.Y. GEN. BUS. LAW §§ 349–350) ...... 186 COUNT 55 VIOLATION OF THE NEW MEXICO UNFAIR TRADE PRACTICES ACT (N.M. STAT. ANN. § 57-12-1 ET SEQ.) ...... 188 COUNT 56 VIOLATION OF THE NORTH CAROLINA UNFAIR AND DECEPTIVE ACTS AND PRACTICES ACT (N.C. GEN. STAT. § 75-1.1 ET SEQ.) ...... 189 COUNT 57 VIOLATION OF THE NORTH DAKOTA CONSUMER FRAUD ACT (N.D. CENT. CODE § 51-15-02) ...... 190 COUNT 58 VIOLATION OF THE OKLAHOMA CONSUMER PROTECTION ACT (OKLA. STAT. TIT. 15, § 751 ET SEQ.) ...... 191 COUNT 59 VIOLATION OF THE OREGON UNLAWFUL TRADE PRACTICES ACT (OR. REV. STAT. § 646.605 ET SEQ.) ...... 193 COUNT 60 VIOLATION OF THE PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW (73 PA. CONS. STAT. § 201-1 ET SEQ.) ...... 194
010825-11/1171942 V1 - vi - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.8 Page 8 of 225
COUNT 61 VIOLATION OF THE RHODE ISLAND UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION ACT (R.I. GEN. LAWS § 6-13.1 ET SEQ.) ...... 196 COUNT 62 VIOLATION OF TENNESSEE CONSUMER PROTECTION ACT (TENN. CODE § 47-18-101, ET SEQ.) ...... 197 COUNT 63 VIOLATIONS OF THE TEXAS DECEPTIVE TRADE PRACTICES AND CONSUMER PROTECTION ACT (TEX. BUS. & COM. CODE § 17.4 ET SEQ.) ...... 201 COUNT 64 VIOLATION OF THE UTAH CONSUMER SALE PRACTICES ACT (UTAH CODE ANN. § 13-11-1 ET SEQ.) ...... 205 COUNT 65 VIOLATION OF THE VERMONT CONSUMER FRAUD ACT (VT. STAT. ANN. TIT. 9, § 2451 ET SEQ.) ...... 206 COUNT 66 VIOLATION OF THE VIRGINIA CONSUMER PROTECTION ACT (VA. CODE ANN. § 59.1-196 ET SEQ.) ...... 207 COUNT 67 VIOLATION OF THE WASHINGTON CONSUMER PROTECTION ACT (WASH. REV. CODE ANN. § 19.86.010 ET SEQ.) ...... 208 COUNT 68 VIOLATION OF THE WEST VIRGINIA CONSUMER CREDIT AND PROTECTION ACT (W. VA. CODE § 46A-1-101 ET SEQ.) ...... 209 COUNT 69 VIOLATION OF THE WYOMING CONSUMER PROTECTION ACT (WYO. STAT. § 40-12-105 ET SEQ.) ...... 212
COUNT 70 BREACH OF EXPRESS WARRANTY ...... 213
COUNT 71 FRAUD ...... 213
COUNT 72 NEGLIGENT MISREPRESENTATION ...... 214
COUNT 73 UNJUST ENRICHMENT ...... 215
REQUEST FOR RELIEF ...... 215
DEMAND FOR JURY TRIAL ...... 216
010825-11/1171942 V1 - vii - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.9 Page 9 of 225
Plaintiffs, Jamar Haynes, Scott Whitehill, Matthew Brownlee, Benjamin
Bischoff, Stephen Leszczynski, Cassandra Morrison, Robert Raney, and David
Polley individually and on behalf of all others similarly situated (the “Class”),
allege the following based upon the investigation of counsel, the review of
scientific papers, and the proprietary investigation of experts.
INTRODUCTION 1. Plaintiffs bring this class action for a Class defined as:
All persons who purchased or leased a Ford vehicle whose published EPA fuel economy ratings, as printed on the vehicles’ window sticker, were more than the fuel economy rating produced by a properly conducted applicable federal mileage test. The vehicles in the Class include but are not limited to the model year 2019 Ford Ranger and the 2018 and 2019 Ford F-150.
2. These vehicles are hereinafter referred to as the “Coastdown Cheating
Vehicles” and include the 2019 Ford Ranger Truck and the 2018-2019 F-150 series trucks, and likely also include other Ford vehicles.
3. A Coastdown test is a procedure that determines metrics used to calculate a vehicle’s fuel economy values or “MPG Rating.” Coastdown testing tells a manufacturer how much rolling resistance and drag a vehicle has, so that
when a vehicle is testing on a dynamometer, as required by regulations, the
manufacturer knows how much drag and rolling resistance to apply to the vehicle
to simulate the road.
010825-11/1171942 V1 - 1 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.10 Page 10 of 225
4. Ford fudged its coastdown testing and used inaccurate drag and resistance figures to boost the vehicles’ EPA mileage ratings.
5. On the window sticker of every Ford F-150 and Ford Ranger are
EPA-required indications of fuel economy including city and highway mileage, miles per gallon, and a combined city and highway miles per gallon statement.
Ford knows that fuel economy is material to consumers.
6. Testing of the 2018 F-150 using the mandated coastdown procedure reveals that Ford did not follow appropriate coastdown testing procedures. The window sticker or “Monroney sticker” for a Ford F-150 V6 indicates mileage of
20 city, 26 highway, and 22 combined. Accurate coastdown testing of a 2018 Ford
F-150 V6 reveals the following: The real highway fuel number is 22.7 MPG compared to 26.6 reported by Ford to the EPA. For city driving it is 17.7 MPG compared to 19.6 reported to the EPA. So the highway fuel difference is 15% and the city difference 10%. Assuming the lifetime of a truck is 150,000 miles, at the real city miles per gallon rates. City driving would consume an extra 821 gallons over the lifetime of the truck, or at $2.79 national average fuel price, an extra
$2,290 in fuel costs over Ford’s reported miles per gallon. The highway extra fuel
(extra means real MPG versus Ford’s reported MPG) is 968 gallons or $2,700.
7. If one rounds to the Monroney sticker numbers, the math on real mileage versus Ford’s reported mileage is as follows:
010825-11/1171942 V1 - 2 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.11 Page 11 of 225
Sticker Reported City Mileage: 20 Real City Mileage: 18 Sticker Reported Highway Mileage: 25 Real Highway Mileage: 23 Sticker Reported Combined Mileage: 22 Real Combined Mileage: 21
So there is an overstatement of 10% on city mileage and 8% on highway. That results in increased fuel costs of an extra $2,324 in city driving fuel costs, and
$1,453 in highway driving fuel costs over the life of the vehicle.
8. These are material differences as manufacturers fight for every 1/10th of a difference in miles per gallon both to attract customers and to earn credits under the applicable environmental emissions regulations.
9. Looking at the 2018 sales of F-150s and assuming that 70% are V6 F-
150s, there were 636,000 trucks sold. Total additional fuel cost for that one model year over the life of the vehicle would be $1,478,700,000 for the city fuel rating,
$1,335,282,936 for the highway rating or $1,209,845,455 for the combined rating.
This is damages as measured by extra fuel costs just for the 2018 Model Year for the V6 model alone.
10. Ford’s motives in overstating vehicle miles per gallon were (1) to advertise the vehicles as “Best in Class” for fuel economy or to advertise a fuel economy that would beat the competition and/or be attractive to consumers, (2) to attract customers based on fuel economy ratings, and (3) less fuel burned means less emissions, and therefore more credits for Ford under the U.S. CAFE environmental regulations.
010825-11/1171942 V1 - 3 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.12 Page 12 of 225
11. Ford has admitted that its newest model of truck, the 2019 Ranger, is just the first model that is being investigated by the government for improper coastdown testing. As explained herein, plaintiffs’ testing of the 2018 F-150 reveals similar coastdown cheating.
12. There is no reason to assume Ford overstated mileage on just the V6 model 2018 F-150. Ford sold over 1 million 2018 F-150s. The extra fuel costs, with the same assumptions above, for all 2018 F-150s is $2.32 billion for city driving, $2.09 billion highway, and $1.9 billion combined. The F-150 2019 is virtually identical in engine and body configuration. So it is plausible the 2019 coastdown figures are also overstated.
13. Ford deliberately misrepresented or miscalculated certain road testing factors during internal vehicle testing processes in order to report that its vehicles were more fuel efficient than they actually were. In particular, Ford miscalculated something called “Road Load,” which is the force that is imparted on a vehicle while driving at a constant speed over a smooth, level surface from sources such as tire rolling resistance, driveline losses, and aerodynamic drag.1 Ford’s internal lab tests did not account for these forces, which lead to better—and entirely inaccurate—fuel economy projections.
1 See Exhibit 1, https://iaspub.epa.gov/otaqpub/display_file.jsp?docid=34102&flag=1.
010825-11/1171942 V1 - 4 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.13 Page 13 of 225
14. Despite Ford’s own employees questioning its testing practices and the calculations that Ford was utilizing for fuel economy ratings, at least by
September 2018,2 Ford took no action to correct the problems, nor to alert consumers that their test methods were flawed and that consumers would not get the promised fuel economy.
15. With respect to its 2019 Ford Ranger, Ford promised that its midsize truck “will deliver with durability, capability and fuel efficiency, while also providing in-city maneuverability and the freedom desired by many midsize pickup truck buyers to go off the grid.”3 Ford also claimed that its “All-New Ford
Ranger [was] Rated Most Fuel Efficient Gas-Powered Midsize Pickup in
America.”4 “With EPA-estimated fuel economy ratings of 21 mpg city, 26 mpg
highway and 23 mpg combined, 2019 Ford Ranger is the most fuel efficient gas-
powered midsize pickup in America.”5 Ford claimed the 2019 Ranger “is the no- compromise choice for power, technology, capability, and efficiency whether the
2 Exhibit 2, https://www.nytimes.com/2019/02/21/business/ford- emissions.html?module=inline. 3 Exhibit 3, Statement from Todd Eckert, Ford Truck Group’s Marketing Manager, https://thenewswheel.com/2019-ford-ranger-most-fuel-efficient/. 4 Exhibit 4, https://media.ford.com/content/fordmedia/fna/us/en/news/2018/12/11/ford-ranger- rated-most-fuel-efficient-gas-powered-midsize-pickup.html. 5 Id.
010825-11/1171942 V1 - 5 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.14 Page 14 of 225
path is on road or off.”6 Ford knew that to sell the Ranger, it had to tout it had fuel
efficiency, and this promise was material to consumers.
16. There is no question that Ford used the fuel efficiency ratings as a
selling tool to entice consumers into purchasing the 2019 Ford Ranger. Indeed,
Ford promised that “[t]he adventure-ready 2019 Ford Ranger is the most fuel-
efficient gas-powered midsize pickup in America—providing a superior EPA-
estimated city fuel economy rating and an unsurpassed EPA-estimated combined
fuel economy rating versus the competition. The all-new Ranger has earned EPA- estimated fuel economy ratings of 21 mpg city, 26 mpg highway and 23 mpg combined for 4x2 trucks.”7 Ford claimed that “[t]his is the best-in-class EPA-
estimated city fuel economy rating of any gasoline-powered four-wheel-drive
midsize pickup and it is an unsurpassed EPA-estimated combined fuel economy
rating.”8
17. Fuel economy was also used as a tool to entice customers to buy the
Ford F-150. Ford promised that certain of 2018 F-150s were “best in class” for
fuel economy, or promised certain city, highway and combined fuel miles per gallon for other F-150 models that were robust enough that Ford believed would make them attractive to consumers.
6 Id. 7 Id. 8 Id.
010825-11/1171942 V1 - 6 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.15 Page 15 of 225
18. In contrast to Ford’s promises, as noted above, scientifically valid
testing has revealed that the vehicles (i) are not as fuel efficient as promised; (ii)
are not what a reasonable consumer would expect; and (iii) are not what Ford had
advertised. Further, the vehicles’ promised power, fuel economy and efficiency,
and towing capacity is obtained only by altering the testing calculations.
19. Ford’s representations are deceptive and false, and Ford sold its 2019
Ford Rangers and 2018-19 F-150 models while omitting information that would be
material to a reasonable consumer, namely that Ford miscalculated factors during
internal vehicle testing processes in order to report that its vehicles were more fuel
efficient than they actually were, and discounting common real-world driving
conditions.
20. Plaintiffs bring this action individually and on behalf of all other
current and former owners or lessees of the Coastdown Cheating Vehicles.
Plaintiffs seek damages, injunctive relief, and equitable relief for Ford’s
misconduct related to the design, manufacture, marketing, sale, and lease of the
Coastdown Cheating Vehicles, as alleged in this Complaint.
JURISDICTION 21. This Court has subject matter jurisdiction over this action under 28
U.S.C. § 1332 because Plaintiffs and Defendants reside in different states. The
010825-11/1171942 V1 - 7 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.16 Page 16 of 225
Court has supplemental jurisdiction over Plaintiffs’ state law claims under 28
U.S.C. § 1367.
22. This Court also has original jurisdiction over this lawsuit pursuant to
28 U.S.C. § 1332(a)(1), as modified by the Class Action Fairness Act of 2005, because Plaintiffs and Defendants are citizens of different states; there are more than 100 members of the Class (as defined herein); the aggregate amount in controversy exceeds $5 million, exclusive of attorneys’ fees, interest, and costs; and Class members reside across the United States. The citizenship of each party is described further below in the “Parties” section.
23. This Court has personal jurisdiction over Ford pursuant to 18 U.S.C.
§ 1965(b) & (d). This Court has personal jurisdiction over Ford because it has minimum contacts with the United States, this judicial district, and this State, and it intentionally availed itself of the laws of the United States and this state by conducting a substantial amount of business throughout the state, including the design, manufacture, distribution, testing, sale, lease, and/or warranty of Ford vehicles in this State and District. At least in part because of Ford’s misconduct as alleged in this lawsuit, the Coastdown Cheating Vehicles ended up on this state’s roads and in dozens of franchise dealerships.
010825-11/1171942 V1 - 8 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.17 Page 17 of 225
VENUE 24. Venue is proper in this Court under 28 U.S.C. § 1391 because (i) Ford
conducts substantial business in this District and has intentionally availed itself of
the laws and markets of the United States and this District; and/or (ii) many of the
acts and transactions giving rise to this action occurred in this District, including,
inter alia, Ford’s decision-making, design, promotion, marketing, and distribution
of the Coastdown Cheating Vehicles occurred in this District. Ford has its
headquarters and sells a substantial number of automobiles in this District, has
dealerships located throughout this District, and the misconduct occurred, in part,
in this District. Venue is also proper under 18 U.S.C. § 1965(a) because Ford is
subject to personal jurisdiction in this District, as alleged in the preceding
paragraph, and Ford has agents located in this District.
PARTIES
Plaintiffs
1. Jamar Haynes – Georgia
25. Plaintiff Jamar Haynes is a Georgia citizen and resident of
Lawrenceville, Georgia. In May 2019, he purchased a new 2019 Ford F-150 pickup, paying approximately $38,000. Mr. Haynes compared the alleged fuel efficiency of the F-150 with other similar trucks and selected the F-150 truck based
on Ford’s representations about the vehicle’s fuel efficiency.
010825-11/1171942 V1 - 9 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.18 Page 18 of 225
26. Plaintiff Haynes purchased the new 2019 F-150, with VIN
1FTEW1CP0KFA28481, from Gwinnett Place Ford, an authorized Ford dealership located in Duluth, Georgia. Plaintiff Haynes purchased and still owns this vehicle.
Unbeknownst to Plaintiff Haynes at the time the vehicle was purchased, it consumes more fuel than advertised.
27. Upon information and belief, the vehicle is also equipped with a cheat device, a computer that misrepresents the mileage displayed on the trip meter.
Ford’s unfair, unlawful, and deceptive conduct in designing, testing, manufacturing, marketing, and selling the vehicle with exaggerated fuel economy caused Plaintiff Haynes to suffer out-of-pocket loss in the form of overpayment at
the time of purchase, in addition to added fuel costs.
28. Ford knew about the inaccurate fuel economy representations, computer model, physical test cheating, and the mileage cheat device included in the vehicle, but did not disclose such facts or their effects to Plaintiff Haynes, so he purchased his vehicle on the reasonable but mistaken belief that his vehicle had better fuel economy than the competition, and would retain all of its promised fuel economy and performance throughout its useful life.
29. Plaintiff Haynes selected and ultimately purchased his vehicle, in part, because of the stated “best in class” fuel economy. Had Ford disclosed the true fuel economy and dubious certifications of the vehicle, Plaintiff Haynes would not
010825-11/1171942 V1 - 10 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.19 Page 19 of 225
have purchased the vehicle or would have paid less for it. Plaintiff Haynes and each Class member has suffered an ascertainable loss as a result of Ford’s omissions and/or misrepresentations. Neither Ford nor any of its agents, dealers, or other representatives informed Plaintiff Haynes or Class members of the existence of a fuel economy cheat device or the true fuel economy of the Coastdown
Cheating Vehicles prior to purchase.
2. Cassandra Morrison – Illinois 30. Plaintiff Cassandra Morrison is an Illinois citizen and resident of
Chicago, Illinois. In June 2019, she purchased a new 2019 Ford F-150 XLT
SuperCrew pickup, paying approximately $44,000. Ms. Morrison compared the alleged fuel efficiency of the F-150 with other similar trucks, including the
Chevrolet Silverado, GMC Sierra, and Nissan Titan, and selected the F-150 truck based on Ford’s representations about the vehicle’s fuel efficiency.
31. Plaintiff Morrison purchased the new 2019 F-150, with VIN
1FTEW1EP8KFB13355, from McCarthy Ford, an authorized Ford dealership located in Chicago, Illinois. Plaintiff Morrison purchased and still owns this vehicle. Unbeknownst to Plaintiff at the time the vehicle was purchased, it consumes more fuel than advertised.
32. Upon information and belief, the vehicle is also equipped with a cheat device, a computer that misrepresents the mileage displayed on the trip meter.
010825-11/1171942 V1 - 11 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.20 Page 20 of 225
Ford’s unfair, unlawful, and deceptive conduct in designing, testing, manufacturing, marketing, and selling the vehicle with exaggerated fuel economy caused Plaintiff Morrison to suffer out-of-pocket loss in the form of overpayment at the time of purchase, in addition to added fuel costs.
33. Ford knew about or recklessly disregarded the inaccurate fuel economy representations, computer model, physical test cheating, and the mileage cheat device included in the vehicle, but did not disclose such facts or their effects to Plaintiff Morrison, so she purchased her vehicle on the reasonable but mistaken belief that her vehicle had better fuel economy than the competition, and would
retain all of its promised fuel economy and performance throughout its useful life.
34. Plaintiff Morrison selected and ultimately purchased her vehicle, in
part, because of the stated “best in class” fuel economy. Had Ford disclosed the
true fuel economy and dubious certifications of the vehicle, Plaintiff Morrison would not have purchased the vehicle or would have paid less for it. Plaintiff
Morrison and each Class member has suffered an ascertainable loss as a result of
Ford’s omissions and/or misrepresentations. Neither Ford nor any of its agents, dealers, or other representatives informed Plaintiff Morrison or Class members of the existence of a fuel economy cheat device or the true fuel economy of the
Coastdown Cheating Vehicles prior to purchase.
010825-11/1171942 V1 - 12 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.21 Page 21 of 225
3. Benjamin Bischoff – Louisiana 35. Plaintiff Benjamin Bischoff is a Louisiana citizen and resident of
Eunice, Louisiana. In June 2018, he purchased a new 2018 Ford F-150 pickup for
approximately $56,510. Mr. Bischoff compared the alleged fuel efficiency of the
2018 F-150 with other similar trucks and selected the 2018 F-150 truck based in part on Ford’s representations about the vehicle’s fuel efficiency. Mr. Bischoff purchased the 2018 F-150, with VIN 1FTEW1E52JKC7620, from Pitre Ford, an authorized Ford dealership located in Eunice, Louisiana. Mr. Bischoff purchased and still owns this vehicle. Unbeknownst to Mr. Bischoff at the time the vehicle was purchased, it consumes more fuel than advertised. Ford’s unfair, unlawful, and deceptive conduct in designing, testing, manufacturing, marketing, and selling the vehicle with exaggerated fuel economy caused Mr. Bischoff to suffer out-of- pocket loss in the form of overpayment at the time of purchase, in addition to added fuel costs. Ford knew about, or recklessly disregarded, the inaccurate fuel economy representations and the mileage cheat device included in the vehicle, but did not disclose such facts or their effects to Mr. Bischoff, so he purchased his vehicle on the reasonable but mistaken belief that his vehicle had better fuel economy than the competition, was properly EPA-certified, and would retain all of its promised fuel economy and performance throughout its useful life. Mr.
Bischoff selected and ultimately purchased his vehicle, in part, because of the
010825-11/1171942 V1 - 13 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.22 Page 22 of 225
stated fuel economy, as represented through advertisements and representations made by Ford. Mr. Bischoff recalls that before he purchased the 2018 F-150, he saw representations about the vehicle’s performance, including its fuel economy, on Ford’s website and on the vehicle’s window sticker. Had Ford disclosed the true fuel economy and dubious certifications of the vehicle, Mr. Bischoff would not have purchased the vehicle or would have paid less for it. Mr. Bischoff and each Class member has suffered an ascertainable loss as a result of Ford’s omissions and/or misrepresentations, including, but not limited to, a high premium for exaggerated fuel economy, and out-of-pocket losses by overpaying for the vehicles at the time of purchase and added fuel costs. Neither Ford nor any of its agents, dealers, or other representatives informed Mr. Bischoff or Class members
of the true fuel economy of the Coastdown Cheating Vehicles prior to purchase.
4. Scott Whitehill – Nebraska
36. Plaintiff Scott Whitehill is a Nebraska citizen and resident of Omaha,
Nebraska. On or about August 30, 2018, he purchased a new 2018 Ford F-150
pickup, paying approximately $49,380. Prior to purchasing the F-150, Mr.
Whitehill compared the alleged fuel efficiency of the F-150 with other similar
trucks. Mr. Whitehill selected the F-150 truck based on Ford’s representations on the window sticker about the vehicle’s fuel efficiency.
010825-11/1171942 V1 - 14 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.23 Page 23 of 225
37. Plaintiff Whitehill purchased the new 2018 F-150, with VIN
1FTEWE52JKE30312, from Woodhouse Ford, an authorized Ford dealership located in Omaha, Nebraska. Plaintiff Whitehill purchased and still owns this vehicle. Unbeknownst to Plaintiff at the time the vehicle was purchased, it consumes more fuel than advertised.
38. Upon information and belief, the vehicle is also equipped with a cheat device, a computer that misrepresents the mileage displayed on the trip meter.
Ford’s unfair, unlawful, and deceptive conduct in designing, testing,
manufacturing, marketing, and selling the vehicle with exaggerated fuel economy
caused Plaintiff Whitehill to suffer out-of-pocket loss in the form of overpayment
at the time of purchase, in addition to added fuel costs.
39. Ford knew about or recklessly disregarded the inaccurate fuel
economy representations, computer model, physical test cheating, and the mileage
cheat device included in the vehicle, but did not disclose such facts or their effects
to Plaintiff Whitehill, so he purchased his vehicle on the reasonable but mistaken
belief that his vehicle had better fuel economy than the competition and would
retain all of its promised fuel economy and performance throughout its useful life.
40. Plaintiff Whitehill selected and ultimately purchased his vehicle, in
part, because of the stated fuel economy. Had Ford disclosed the true fuel
economy and dubious certifications of the vehicle, Plaintiff Whitehill would not
010825-11/1171942 V1 - 15 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.24 Page 24 of 225
have purchased the vehicle or would have paid less for it. Plaintiff Whitehill and each Class member has suffered an ascertainable loss as a result of Ford’s omissions and/or misrepresentations. Neither Ford nor any of its agents, dealers, or other representatives informed Plaintiff Whitehill or Class members of the existence of a fuel economy cheat device or the true fuel economy of the
Coastdown Cheating Vehicles prior to their lease or purchase.
5. David Polley – Ohio 41. Plaintiff David Polley is a Ohio citizen and resident of Bellevue,
Ohio. On or about December 10, 2018, he leased a new 2018 Ford F-150 pickup paying approximately $50,205. Mr. Polley compared the alleged fuel-efficiency of the 2018 Ford F-150 with other similar trucks and selected the 2018 Ford F-150 truck based, in part, on Ford’s representations about the vehicle’s fuel- efficiency. Mr. Polley leased the 2018 Ford F-150 from Don Tester Ford, an authorized Ford dealership located in Norwalk, Ohio. Mr. Polley leased and is still leasing this vehicle. Unbeknownst to Mr. Polley at the time the vehicle was leased, it consumes more fuel than advertised. Ford’s unfair, unlawful, and deceptive conduct in designing, testing, manufacturing, marketing, and selling the vehicle with exaggerated fuel economy caused Mr. Polley to suffer out-of-pocket loss in the form of overpayment at the time of purchase, in addition to added fuel costs. Ford knew about, or recklessly disregarded, the inaccurate fuel economy
010825-11/1171942 V1 - 16 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.25 Page 25 of 225
representations and the mileage cheat device included in the vehicle, but did not disclose such facts or their effects to Mr. Polley, so he leased his vehicle on the reasonable but mistaken belief that his vehicle had better fuel economy than the competition, was properly-EPA certified, and would retain all of its promised fuel economy and performance throughout its useful life. Mr. Polley selected and ultimately leased his vehicle, in part, because of the stated fuel economy, as represented through advertisements and representations made by Ford. Mr. Polley recalls that before he leased the 2018 Ford F-150, he saw representations about the vehicle’s performance, including its fuel economy, on Ford’s website and on the vehicle’s window sticker. Had Ford disclosed the true fuel economy and dubious certifications of the vehicle, Mr. Polley would not have leased the vehicle or would have paid less for it. Mr. Polley and each Class member has suffered an ascertainable loss as a result of Ford’s omissions and/or misrepresentations, including, but not limited to, a high premium for exaggerated fuel economy, and
out of pocket losses by overpaying for the vehicle at the time of purchase and
added fuel costs. Neither Ford nor any of its agents, dealers, or other
representatives informed Mr. Polley or Class members the true fuel economy of the
Coastdown Cheating Vehicles prior to entering into the lease.
010825-11/1171942 V1 - 17 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.26 Page 26 of 225
6. Matthew Brownlee – South Carolina 42. Plaintiff Matthew Brownlee is a South Carolina citizen and resident of
Central, South Carolina. In December 2018, he purchased a new 2018 Ford F-150
pickup paying approximately $45,200. Mr. Brownlee compared the alleged fuel
efficiency of the 2018 F-150 with other similar trucks and selected the 2018 F-150
truck based, in part, on Ford’s representations about the vehicle’s fuel efficiency.
Mr. Brownlee purchased the new 2018 F-150 with VIN 1FTFW1E56JFE72902,
from Fairway Ford, an authorized Ford dealership located in Greenville, South
Carolina. Mr. Brownlee purchased and still owns this vehicle. Unbeknownst to
Mr. Brownlee at the time the vehicle was purchased, it consumes more fuel than advertised. Ford’s unfair, unlawful, and deceptive conduct in designing, testing, manufacturing, marketing, and selling the vehicle with exaggerated fuel economy caused Mr. Brownlee to suffer out-of-pocket loss in the form of overpayment at the time of purchase, in addition to added fuel costs. Ford knew about, or recklessly disregarded, the inaccurate fuel economy representations and the mileage cheat device included in the vehicle, but did not disclose such facts or their effects to Mr.
Brownlee, so he purchased his vehicle on the reasonable but mistaken belief that his vehicle had better fuel economy than the competition, was properly EPA- certified, and would retain all of its promised fuel economy and performance
010825-11/1171942 V1 - 18 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.27 Page 27 of 225
throughout its useful life. Mr. Brownlee selected and ultimately purchased his vehicle, in part, because of the stated fuel economy, as represented through advertisements and representations made by Ford. Had Ford disclosed the true fuel economy and dubious certifications of the vehicle, Mr. Brownlee would not have purchased the vehicle or would have paid less for it. Mr. Brownlee and each Class member has suffered an ascertainable loss as a result of Ford’s omissions and/or misrepresentations, including, but not limited to a high premium for exaggerated fuel economy, and out-of-pocket losses by overpaying for the vehicles at the time of purchase and added fuel costs. Neither Ford nor any of its agents, dealers, or other representatives informed Mr. Brownlee or Class members of the true fuel economy of the Coastdown Cheating Vehicles prior to purchase.
7. Robert Raney – South Dakota 43. Plaintiff Robert Raney is a South Dakota citizen and resident of Box
Elder, South Dakota. On or about May 30, 2019, he purchased a new 2018 Ford
Roush F-150 pickup paying approximately $82,000. Mr. Raney compared the
alleged fuel efficiency of the Ford F-150 with other similar trucks and selected the
Ford F-150 truck based, in part, on Ford’s representations about the vehicle’s fuel efficiency. Mr. Raney purchased his Ford F-150 with VIN
1FTEW1E51JFD88045, from McKie Ford, an authorized Ford dealership located in Rapid City, South Dakota. Mr. Raney purchased and still owns this vehicle.
010825-11/1171942 V1 - 19 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.28 Page 28 of 225
Unbeknownst to Mr. Raney at the time the vehicle was purchased, it consumes more fuel than advertised. Ford’s unfair, unlawful, and deceptive conduct in designing, testing, manufacturing, marketing, and selling the vehicle with exaggerated fuel economy caused Mr. Raney to suffer out-of-pocket loss in the form of overpayment at the time of purchase, in addition to added fuel costs. Ford knew about, or recklessly disregarded, the inaccurate fuel economy representations
and the mileage cheat device included in the vehicle, but did not disclose such facts
or their effects to Mr. Raney, so he purchased his vehicle on the reasonable but
mistaken belief that his vehicle had better fuel economy than the competition, was
properly EPA-certified, and would retain all of its promised fuel economy and performance throughout its useful life. Mr. Raney selected and ultimately purchased his vehicle, in part, because of the stated fuel economy, as represented
through advertisements and representations made by Ford. Mr. Raney recalls that before he purchased the Ford F-150, he saw representations about the vehicle’s performance, including its fuel economy, on Ford’s website and on the vehicle’s window sticker. Had Ford disclosed the true fuel economy and dubious certifications of the vehicle, Mr. Raney would not have purchased the vehicle or would have paid less for it. Mr. Raney and each Class member has suffered an ascertainable loss as a result of Ford’s omissions and/or misrepresentations, including, but not limited to, a high premium for exaggerated fuel economy, and
010825-11/1171942 V1 - 20 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.29 Page 29 of 225
out-of-pocket losses by overpaying for the vehicles at the time of purchase and added fuel costs. Neither Ford nor any of its agents, dealers, or other representatives informed Mr. Raney or Class members of the true fuel economy of the Coastdown Cheating Vehicles prior to purchase.
8. Stephen Leszczynski – Wisconsin
44. Plaintiff Stephen Leszczynski is a Wisconsin citizen and resident of
Mount Pleasant, Wisconsin. On or about July 24, 2019, he purchased a new 2019
Ford Ranger pickup paying approximately $40,715. Mr. Leszczynski compared
the alleged fuel efficiency of the 2019 Ford Ranger with other similar trucks and
selected the 2019 Ford Ranger truck based, in part, on Ford’s representations about
the vehicle’s fuel efficiency. Mr. Leszczynski purchased the 2019 Ford Ranger,
with VIN 1FTER4FH7KLA33465, from Hieser Ford, an authorized Ford
dealership located in Glendale, Wisconsin. Mr. Leszczynski purchased and still
owns this vehicle. Unbeknownst to Mr. Leszczynski at the time the vehicle was
purchased, it consumes more fuel than advertised. Ford’s unfair, unlawful, and
deceptive conduct in designing, testing, manufacturing, marketing, and selling the vehicle with exaggerated fuel economy caused Mr. Leszczynski to suffer out-of- pocket loss in the form of overpayment at the time of purchase, in addition to added fuel costs. Ford knew about, or recklessly disregarded, the inaccurate fuel economy representations and the mileage cheat device included in the vehicle, but
010825-11/1171942 V1 - 21 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.30 Page 30 of 225
did not disclose such facts or their effects to Mr. Leszczynski, so he purchased his
vehicle on the reasonable but mistaken belief that his vehicle had better fuel
economy than the competition, was properly EPA-certified, and would retain all of
its promised fuel economy and performance throughout its useful life. Mr.
Leszczynski selected and ultimately purchased his vehicle, in part, because of the
stated fuel economy, as represented through advertisements and representations
made by Ford. Mr. Leszczynski recalls that before he purchased the 2019 Ford
Ranger, he saw representations about the vehicle’s performance, including its fuel economy, on Ford’s website and on the vehicle’s window sticker. Had Ford disclosed the true fuel economy and dubious certifications of the vehicle, Mr.
Leszczynski would not have purchased the vehicle or would have paid less for it.
Mr. Leszczynski and each Class member has suffered an ascertainable loss as a result of Ford’s omissions and/or misrepresentations, including, but not limited to, a high premium for exaggerated fuel economy, and out-of-pocket losses by overpaying for the vehicles at the time of purchase and added fuel costs. Neither
Ford nor any of its agents, dealers, or other representatives informed Mr.
Leszczynski or Class members of the true fuel economy of the Coastdown
Cheating Vehicles prior to purchase.
010825-11/1171942 V1 - 22 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.31 Page 31 of 225
Defendant
1. Ford Motor Company
45. Ford Motor Company is a corporation doing business in all 50 states and the District of Columbia and is organized under the laws of the State of
Delaware, with its principal place of business in Dearborn, Michigan.
46. At all times relevant to this action, Ford manufactured, sold, and
warranted the Coastdown Cheating Vehicles throughout the United States. Ford
and/or its agents, divisions, or subsidiaries designed, and manufactured the
Coastdown Cheating Vehicles. Ford also developed and disseminated the owner’s
manuals, supplements, and warranty booklets, advertisements, and other
promotional materials relating to the Coastdown Cheating Vehicles, and Ford
provided these to its authorized dealers for the express purpose of having these
dealers pass such materials to potential purchasers at the point of sale. Ford also
created, designed, and disseminated information about the quality of the
Coastdown Cheating Vehicles to various agents of various publications for the
express purpose of having that information reach potential consumers.
FACTUAL ALLEGATIONS
Coastdown testing
47. Ford deliberately miscalculated and misrepresented factors used in vehicle certification testing in order to report that its vehicles used less fuel and
010825-11/1171942 V1 - 23 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.32 Page 32 of 225
emitted less pollution than they actually did. The certification test-related cheating centers on the “Coastdown” testing and “Road Load” calculations.
48. A coastdown test is a procedure that determines metrics later used to calculate a vehicle’s fuel economy values or “MPG rating.” MPG ratings are established using a machine called a “dynamometer.” A dynamometer is like a treadmill for vehicles, enabling vehicles to be operated indoors on a stationary platform to simulate real-world vehicle operation. The level of resistance on the dynamometer is adjusted based on coastdown testing for each specific vehicle model to simulate the level of resistance that the vehicle would encounter if operated on the road. Coastdown testing is used to determine the appropriate resistance levels (or “road loads”) to use on the dynamometer for a given vehicle model. Coastdown testing is used to measure all types of resistance encountered by a given vehicle model during real-world operation, including:
Vehicle aerodynamic resistance, a factor affected by the vehicle’s shape, which determines how much energy the vehicle uses to push air out of the way as it moves. The more resistance, the more energy has to be expended.
Tire rolling resistance, a factor related to tire design that determines how much energy the vehicle has to use to overcome the resistance caused by the interface between the tires and the road.
Driveline and powertrain mechanical resistance, a factor measuring the vehicle’s drivetrain and how much energy the vehicle has to use to overcome internal friction to drive the wheels.
010825-11/1171942 V1 - 24 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.33 Page 33 of 225
49. A vehicle that has been properly broken in prior to the test (generally including vehicle and tire mileage, fluids and fuel, and vehicle warm-up) is driven up to a certain speed, typically around 80 MPH, after which it is put into neutral and allowed to coast until its speed drops below 9 MPH.
50. Special devices in the vehicle accurately measure environmental conditions (ambient temperature, humidity and barometric pressure), performance data, and speed and distance traveled during the coastdown test.
51. In order to eliminate the effect of wind speed and direction, the test is performed multiple times (a minimum of 5 runs) on a completely flat, straight, and dry road in both directions of the track. Analysis of the recorded speed and distance information provides the vehicle’s road load force.
52. Ford miscalculated “Road Load,” which is a measure of those forces, defined as the force that is imparted on a vehicle while driving at a constant speed over a smooth, level surface from sources such as tire rolling resistance, driveline losses, and aerodynamic drag.9
53. This measure of forces acting against the vehicle during real-world
driving is critical to the simulation of actual driving when a vehicle is tested in the
laboratory. Ford’s internal lab tests did not account for these forces, which lead to
9 See Exhibit 1, https://iaspub.epa.gov/otaqpub/display_file.jsp?docid=34102&flag=1.
010825-11/1171942 V1 - 25 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.34 Page 34 of 225
better—and entirely inaccurate—fuel economy projections, and claims that the vehicles emitted less pollution than they emitted in reality.
The coastdown results are used to create fuel economy information posted on vehicles’ windows and used in advertising. 54. The Coastdown test results are sent by Ford to the EPA to be used as the basis for mileage information used on window stickers also called a
“Monroney sticker.”
55. The Monroney sticker is on the window of every new car and includes
information about the vehicle’s price, engine and transmission specifications, other
mechanical and performance specs, fuel economy and emissions ratings, safety
ratings, and standard and optional features.
56. The Monroney sticker is named for A.S. “Mike” Monroney, a
longtime Oklahoma congressman who wrote the 1958 Automobile Information
Disclosure Act, the federal law that requires the Monroney sticker.
57. The Monroney sticker lists all features that come standard to the
vehicle. This might include air bags, anti-lock brakes, a radio and CD or MP3
player, plus any warranties or additional services such as roadside assistance. Also
included on the sticker is a section called “the EPA sticker.” The Environmental
Protection Agency section of the sticker tells how many miles per gallon of gas the
vehicle gets on the highway and in the city. The EPA label provides miles-per-
gallon equivalent (MPGe) figures for electric and hybrid cars to help consumers
010825-11/1171942 V1 - 26 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.35 Page 35 of 225
compare the fuel economy of these vehicles with gas- and diesel-powered cars.
The EPA section will detail the vehicle’s potential environmental impact with greenhouse gas emissions.
58. The fuel economy figures are used by car reviewers and used by consumers to rate cars. For example, trucks are ranked on fuel economy as follows with the Ford F-150 at the top:
9 Best Ranked MPG Trucks of 2018: Ranked:
2016 Ford F-150 Automatic 2.7L 2016 Chevrolet Colorado Automatic 3.6L 2015 Chevrolet Silverado 1500 Automatic 4.3L 2015 Ford F-150 Automatic 3.5L 2014 Chevrolet Silverado 1500 Automatic 4.3L 2016 Chevrolet Silverado 1500 Automatic 4.3L 2016 Dodge Ram 1500 Automatic 3.6L 2016 Ford F-150 Automatic 3.5L[10]
59. On the popular CarMax site11, based on fuel economy numbers provided by Ford and published by EPA, CarMax had this to say about putting
Ford F-150s near the top:
10 Exhibit 15, Google and related search for F-150 fuel economy. 11 Exhibit 16, https://www.carmax.com/articles/best-mpg-trucks-ranking (last visited Jul. 18, 2019).
010825-11/1171942 V1 - 27 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.36 Page 36 of 225
010825-11/1171942 V1 - 28 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.37 Page 37 of 225
010825-11/1171942 V1 - 29 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.38 Page 38 of 225
010825-11/1171942 V1 - 30 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.39 Page 39 of 225
Ford admits improper coastdown testing.
1. 2019 Ranger 60. Ford has admitted that in September of 2018 several of its own employees were questioning its computer modeling and physical test practices for certification of fuel economy and emissions.12 Yet, Ford took no action to correct
these ongoing misrepresentations or to alert consumers.
61. Pressured by the pending governmental criminal investigation, Ford
has now stated that it will look into the testing of the 2019 Ranger truck before
looking at its other vehicles. When Ford released a statement regarding the
problem, truck blogger Andre Smirnov of TheFastLaneTruck.com drove the new
Ranger for 1,000 miles, from California to Colorado to test its real-world mileage,
12 Exhibit 2, https://www.nytimes.com/2019/02/21/business/ford- emissions.html?module=inline.
010825-11/1171942 V1 - 31 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.40 Page 40 of 225
and found it achieved only 19.5 MPG, not the 24 MPG certified to the EPA for the
4x4 model.13
62. Having concluded that the actual performance of the Ranger was
“nowhere close” to the EPA rated MPG, in March of 2019, the truck blogger tested
the Ranger truck on The Fast Lane Truck’s 98-mile fuel economy loop.14 “[T]he
Ranger’s trip computer told us that the truck managed just over 25 mpg, though
our math at the fuel pump did not add up to the same number.”15 The highway mileage was only one (1) MPG greater on the test loop than on its 1,000 mile drive. The TFL test drivers were at a loss for words when they discovered a nearly four (4) MPG discrepancy between the mileage reported on the Ranger’s trip meter and what they measured at the pump (21.3 MPG actual versus 25.8 MPG on Ford’s trip meter)16:
13 Exhibit 5, https://www.tfltruck.com/2019/02/real-world-2019-ford-ranger- fuel-economy-here-is-the-unexpected-result-after-a-1000-mile-road-trip-video/. 14 Exhibit 14, https://www.tfltruck.com/2019/03/epa-says-the-new-ford-ranger- gets-24-mpg-on-the-highway-but-what-does-it-really-get-at-70-mph-video/. 15 Id. 16 Exhibit 6, Video of the testing located at https://youtu.be/W6iLtygCC7Y, embedded in the previously cited article at: https://www.tfltruck.com/2019/03/epa- says-the-new-ford-ranger-gets-24-mpg-on-the-highway-but-what-does-it-really- get-at-70-mph-video/.
010825-11/1171942 V1 - 32 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.41 Page 41 of 225
63. Thus, Ford has programmed its onboard computers with a mileage cheat device to continue to lie about the vehicle’s fuel economy in order to
continually conceal the misrepresentation.
64. With respect to its 2019 Ford Ranger, Ford promised that its midsize
truck “will deliver with durability, capability and fuel efficiency, while also
providing in-city maneuverability and the freedom desired by many midsize
pickup truck buyers to go off the grid.”17 Ford also claimed that its “All-New Ford
Ranger [was] Rated Most Fuel Efficient Gas-Powered Midsize Pickup in
17 Exhibit 3, Statement from Todd Eckert, Ford Truck Group’s Marketing Manager, https://thenewswheel.com/2019-ford-ranger-most-fuel-efficient/.
010825-11/1171942 V1 - 33 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.42 Page 42 of 225
America.”18 “With EPA-estimated fuel economy ratings of 21 mpg city, 26 mpg
highway and 23 mph combined, 2019 Ford Ranger is the most fuel efficient gas-
powered midsize pickup in America.”19 Ford claimed the 2019 Ranger “is the no- compromise choice for power, technology, capability, and efficiency whether the path is on road or off.”20 Ford knew that to sell the Ranger, it had to tout it as
having fuel efficiency and reduced emissions, and that such promises were
material to consumers.
65. There is no question that Ford used the fuel efficiency ratings as a
sales tool to entice consumers into purchasing the 2019 Ford Ranger. Indeed, Ford
promised that “[t]he adventure-ready 2019 Ford Ranger is the most fuel-efficient gas-powered midsize pickup in America—providing a superior EPA-estimated city fuel economy rating and an unsurpassed EPA-estimated combined fuel economy rating versus the competition. The all-new Ranger has earned EPA-estimated fuel
economy ratings of 21 mpg city, 26 mpg highway and 23 mpg combined for 4x2
trucks.”21 Ford claimed that “[t]his is the best-in-class EPA-estimated city fuel
18 Exhibit 4, https://media.ford.com/content/fordmedia/fna/us/en/news/2018/12/11/ford-ranger- rated-most-fuel-efficient-gas-powered-midsize-pickup.html. 19 Id. 20 Id. 21 Id.
010825-11/1171942 V1 - 34 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.43 Page 43 of 225
economy rating of any gasoline-powered four-wheel-drive midsize pickup and it is an unsurpassed EPA-estimated combined fuel economy rating.”22
66. By cheating in the certification testing, and providing a mileage cheat
device in the vehicles, Ford made its F-150 trucks more appealing and competitive
in the marketplace, to the point of being named “best in class” for some 150’s and
driving up sales and profits.
CAFE standards provide manufacturers with credits for low emissions. 67. Ford also reaped a double reward from this cheating. Cars and trucks are one of the major sources of air pollution, which includes ozone, particulate
matter, and other smog-forming emissions. The health risks of air pollution are
extremely significant—poor air quality increases respiratory ailments like asthma
and bronchitis, heightens the risk of life-threatening conditions like cancer, and
burdens the American health care system with substantial medical costs.
Passenger cars and trucks are major contributors to pollution, producing significant
amounts of nitrogen oxides, carbon monoxide, and other pollution. The U.S.
government, through the EPA, has passed and enforced laws designed to protect
U.S. citizens from these pollutants and certain chemicals and agents known to
cause disease in humans.
22 Id.
010825-11/1171942 V1 - 35 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.44 Page 44 of 225
68. The United States has two sets of parallel standards that affect fuel economy: (1) the corporate average fuel economy (CAFE) standards adopted by the National Highway Traffic Safety Administration (NHTSA), an agency within the Department of Transportation (DOT); and (2) greenhouse gas (GHG) emissions standards adopted by the EPA.
69. Automobile manufacturers must abide by these laws and must adhere to EPA rules and regulations. One of the major drivers of fuel efficiency improvement are the CAFE standards. These requirements have nearly doubled the fuel efficiency of vehicles in the U.S. In addition to the reduced health costs and human illness, CAFE standards are estimated to save each U.S. household approximately $2,000.00 per year in reduced fuel consumption as of 2016. The
Energy Independence and Security Act (EISA) of 2007 mandated a 40% increase
in fuel economy by 2020.
70. The original CAFE standards set minimum average fuel consumption
performance (average miles travelled per gallon of fuel used) for the fleets of new
“passenger automobiles” (passenger cars) and “non-passenger automobiles” (light
trucks, which includes many SUVs) produced by each manufacturer. The standards
for these two types of vehicles differed.
71. Before standards took effect, the average fuel efficiency for passenger
cars was 15.2 MPG). Congress required manufacturers to achieve a fleet average
010825-11/1171942 V1 - 36 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.45 Page 45 of 225
of 18 MPG by 1978, 19 MPG by 1979, and 20 MPG by 1980, rising to 27.5 MPG by 1985, with interim standards to be set by NHTSA. But by 1981 average fuel efficiency for passenger cars had risen to 28.4 MPG, exceeding the standards.
72. For light trucks, NHTSA set standards that required manufacturers to achieve a fleet average of 17.2 MPG for two-wheel drive vehicles and 15.8 MPG for four-wheel drive vehicles in 1979, rising to 21.5 MPG and 19 MPG respectively by 1989. Over this period, two-wheel drive vehicles increased from
13.4 to 16.9 MPG while four-wheel drive vehicles increased from 12.3 MPG to
14.4 MPG.
73. The National Highway Traffic Safety Administration (NHTSA) kept
CAFE standards for cars the same from 1985 to 2010, except for a slight decrease in required MPG from 1986 to 1989. Truck standards, initially set in 1976 for 1989 vehicles at 21.5 MPG for 2-wheel drive vehicles and 19 MPG for 4-wheel drive vehicles, were frozen by Congress in the mid-1990s at 20.7 MPG and were not increased until 2005.
74. However, starting in 2005, Washington policy makers ushered in a number of changes. Between 2005 and 2007, the Bush administration raised the truck fuel efficiency standard from 20.7 to 22.2 MPG. More significantly, in 2007,
Congress passed the Energy Independence and Security Act (EISA), which requires model-year 2011 and later vehicles for sale in the U.S. that were
010825-11/1171942 V1 - 37 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.46 Page 46 of 225
manufactured outside the U.S. to achieve a fleetwide gas mileage of 35 MPG and
requires vehicles for sale in the U.S. that were manufactured in the U.S. to achieve
a fleetwide gas mileage of 27.5 MPG by 2020. In 2009, the Obama administration
eliminated the default 27.5 MPG standard and established a new 27.3 MPG
standard for 2011 model-year vehicles manufactured domestically and
internationally. The new standard was scheduled to increase annually until it
reached 35 MPG for 2020 model-year vehicles.
75. Starting in 2005 for trucks and 2011 for all vehicles, the standard is
based on one specific attribute: a manufacturer’s collective vehicle footprint. The
formula multiplies every vehicle’s wheelbase by its average track width for each
manufacturer. This creates a relatively simple inverse-linear formula with cutoff
values. The attribute-based formula produces one number for each automaker. So
while each model sold does not have to achieve a specific target, the automaker’s fleet on a whole must meet its target. This method helps balance earlier standards,
which were biased against automakers whose overall vehicle lineup was fuel-
efficient, but sold one or two models (typically work trucks) that were not fuel-
efficient.
76. For example, the GM Sierra Denali is a full-size work truck with an
MPG range of 16 in the city and 23 on the highway. The Honda Ridgeline is a
mid-size truck with an MPG range of 19 in the city and 26 on the highway. To
010825-11/1171942 V1 - 38 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.47 Page 47 of 225
balance the lower fuel efficiency of the Denali, GM also builds the hybrid
Chevrolet Volt that gets 42 MPG. If the absolute standard was 20 miles per gallon, drivers would not be able to buy the Denali work truck, which averages 19. But because the standard is by manufacturer and not model, GM can use the Volt to help balance the Denali.
77. In 2012, NHTSA and the EPA issued joint standards for 2017–2025.
While NHTSA’s standards continued to focus on fuel efficiency, the EPA’s more- stringent regulations targeted reductions in carbon dioxide emissions (greenhouse gas emissions) and not fuel efficiency. NHTSA increased the CAFE standards to
41 MPG by 2021 and 49.7 MPG by 2025. The EPA’s standard of 163 g/mi of CO2- equivalent emissions effectively increased standards to 54.5 MPG by 2025. This
54.5 MPG 2025 standard is the first one benchmarked to emissions and not gasoline consumption.
78. Both the NHTSA and EPA standards offer certain flexibilities, termed
“components,” to help manufacturers comply with the standards. The first component is a credit trading system that allows manufacturers to carry efficiency and greenhouse gas credits forward by up to five years and backwards by up to three years to achieve compliance and avoid fines. Manufacturers can transfer credit between cars and trucks and trade credits with other manufacturers. Carbon
010825-11/1171942 V1 - 39 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.48 Page 48 of 225
dioxide credits generated for EPA compliance from model year 2016 and before can be carried forward up to model year 2021.
79. In 2016 NHTSA announced plans to more than double the fines for failing to meet CAFE standards from $5.50 per 0.1 MPG to $14.00. The fine is applied to each 0.1 MPG the automaker falls short and multiplied by the number of vehicles sold in a model year. Companies must satisfy both EPA and NHTSA standards. Manufacturers passing EPA’s greenhouse gas emissions standards that fail NHTSA’s CAFE standards still pay the fine.
80. Manufacturers have a clear economic motivation to meet the standards. If an automaker fails to meet the standards for the model year, it must pay a penalty of $5.50 per 0.1 miles per gallon below the standard, multiplied by the total number of vehicles the manufacturer has produced for the entire U.S. domestic market.
81. Under the increasing federal standards, Ford also began to market its gasoline powered vehicles as being cleaner, with high fuel economy. As the Ford
Ranger was out of the market for eight years, Ford took a targeted marketing approach for the 2019 Ranger, focusing on “outdoorsy digital ads,” that pitched the truck to outdoor adventurists.23 Ford capitalized on its fuel efficiency as a selling
23 Exhibit 8, https://adage.com/article/cmo-strategy/ford-takes-targeted- approach-ranger-comeback/316801.
010825-11/1171942 V1 - 40 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.49 Page 49 of 225
point over its competitors.24 Ford sought a strong re-entry of the Ranger into the
U.S. market by pitching it as amazingly fuel efficiency.
Criminal investigation
82. Ford Motor Company’s March 2019 Securities and Exchange
Commission filing revealed that it is under criminal investigation by the United
States Department of Justice for its emissions certification practices.25
83. Ford Motor Company is a leading auto manufacturer, having sold 2.5 million vehicles in 2018. Ford’s strategy has increasingly focused on the
manufacture and sale of larger gas-guzzling pickup trucks, sport utility vehicles
(SUVs), and vans. These vehicles are, of course, the most challenged by emissions
standards and fuel efficiency. Ford’s focus on this segment of the market created
an immense incentive to cheat.
84. In September of 2018, several Ford employees expressed concerns
about the testing practices at Ford pertaining to emissions and fuel efficiency. In
February of 2019, Ford admitted it was looking into these concerns about its
“computer-modeling methods and calculations used to measure fuel economy and
24 Exhibit 9, https://www.caranddriver.com/news/a25470574/2019-ford-ranger- pickup-mpg/. 25 Exhibit 10, Ford’s March 31, 2019 Quarterly Report to the SEC, at page 70: https://www.sec.gov/Archives/edgar/data/37996/000003799619000026/f03312019 10-q.htm.
010825-11/1171942 V1 - 41 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.50 Page 50 of 225
emissions.”26 Kim Pittel, Ford’s vice president for sustainability, environment and
safety engineering, has admitted to the New York Times that these “calculations
[are] used in testing cars for fuel economy ratings and emissions certifications.”27
Mechanism of coastdown cheating 85. The Environmental Protection Agency (EPA) defines “Road load” as follows:
the force imparted on a vehicle while driving at a constant speed over a smooth level surface from sources such as tire rolling resistance, driveline losses, and aerodynamic drag.
EPA letter to manufacturers, titled: “Determination and Use of Vehicle Road-Load
Force and Dynamometer Settings.”28 These calculations are critical to laboratory
fuel efficiency and emissions testing because the vehicle is placed on a
dynamometer, which is essentially a treadmill for cars. When driving on a
dynamometer, the vehicle is stationary and does not experience the drag of air
against the vehicle; or of the resistance of the tire against the road surface; or the loss
of horsepower that occurs in the drivetrain of the vehicle, the friction, heat, drag, and
other various losses that occur between the engine and tires touching the road.
26 Exhibit 11, https://www.nytimes.com/2019/04/26/business/ford-emissions- criminal-investigation.html. 27 Exhibit 2, https://www.nytimes.com/2019/02/21/business/ford- emissions.html?module=inline. 28 Exhibit 1, https://iaspub.epa.gov/otaqpub/display_file.jsp?docid=34102&flag=1.
010825-11/1171942 V1 - 42 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.51 Page 51 of 225
2017 Ford F-350 During Dynamometer Testing
86. Auto manufacturers use “coastdown” tests of vehicles on the actual
roadway to help calculate variables to be utilized in conjunction with dynamometer
testing. Coastdown testing provides data regarding aerodynamic drag, tire rolling resistance, and drivetrain frictional losses and provides technical data used to program the test dynamometers that generate EPA fuel economy and emissions ratings. In a coastdown test, a vehicle is brought to a high speed on a flat, straight road and then set coasting in neutral until it slows to a low speed. By recording the time the vehicle takes to slow down, it is possible to model the forces affecting the
vehicle. Coastdown tests are governed by tests developed by the Society of
Automotive of Engineers (SAE). SAE developed a standard procedure (J2263-Dec
2008) to perform road load measurement using coastdown testing, and a standard
procedure (J1263-Mar 2010) to perform road load measurement and dynamometer
010825-11/1171942 V1 - 43 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.52 Page 52 of 225
simulation using coastdown testing. The current government-approved standard for road load measurement using onboard anemometry and coastdown testing technique is the SAE International Standard. These standards must be followed by federal regulation. The data relating to speed and distance are recorded by special instruments to account for various factors that might affect the results. The test produces data that identifies or maps the drag and other forces acting on the vehicle in the real world.
87. A coastdown requires planning, data collection, and data processing, but offers many opportunities for manipulation of the data. Data variability and error can be controlled, but several factors must be considered under SAE standards, including calculation of the mass of the vehicle, tire pressure, weather, and environmental factors (e.g., wind speed, air temperature, humidity, and barometric pressure), aerodynamic factors, and road surface, as well as experiment design and methodology, measurement errors, data acquisition systems, and vehicle qualifications. The SAE procedure on coastdown testing includes an appendix with FORTRAN code that processes experimental velocity data and produces a mathematical vehicle force model.
88. The protocol specifies all conditions under which the engine is tested, including lab temperature and vehicle conditions. Most importantly, the test cycle defines the vehicle speed over time that is used to simulate a typical driving
010825-11/1171942 V1 - 44 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.53 Page 53 of 225
scenario. An example of a driving cycle is shown in Figure A. This graph represents the FTP-75 (Federal Test Procedure) cycle that has been created by the
EPA and is used for emission certification and fuel economy testing of passenger
vehicles in the United States. The cycle simulates an urban route with frequent
stops. The cycle lasts 1,877 seconds (about 31 minutes) and covers a distance of
11.04 miles (17.77 km) at an average speed of 21.2 mph (34.12 km/h).
Figure A
89. To assess conformance, these tests are carried out on a chassis
dynamometer, a fixture that holds a car in place while allowing its driven wheels to
turn (a treadmill for cars) with varying resistance meant to simulate the actual load
on the engine during on-road driving. Fuel consumption and emissions are
measured during the test and compared to an emissions standard that defines the
maximum pollutant levels that can be released during such a test. In the United
010825-11/1171942 V1 - 45 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.54 Page 54 of 225
States, emissions standards are managed on a national level by the EPA. In
addition, California has its own emissions standards that are defined and enforced
by CARB. California standards are also adopted by a number of other states
(“Section 177” states).29 Together with California, these states cover a significant
fraction of the U.S. market, making them a de facto second national standard.
F-150 test results 90. Plaintiffs tested a 2019 Ranger. Before rounding for the Monroney sticker the highway fuel economy is 23.4 mpg, compared to 25 reported to the
EPA. or the city it is 18.3 mpg, compared to 20.0 reported to the EPA.
91. If converted to Monroney values:
EPA Reported: Measured: City: 20 City: 18 Highway: 25 Highway: 23 Combined: 22 Combined: 21
92. So this is a difference of 10% in city driving, and 8% on the highway.
Assuming 150,000 miles in a vehicle’s life, this results in an additional 833 gallons
for city driving or increased fuel costs of 42,324. For highway driving there will
be an additional 521 gallons consumed at a cost of $1,453.
29 Those states are: Connecticut, Maine, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, Delaware, Georgia, and North Carolina.
010825-11/1171942 V1 - 46 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.55 Page 55 of 225
93. Testing was conducted on a 2018 Ford F-150 SuperCrew 4x2 truck and a 2019 Ford Ranger SuperCrew 4x2 truck to independently verify the model inputs used to calculate fuel economy of those vehicles.
94. Fuel economy testing to provide the values listed on the Monroney label of passenger cars and light duty trucks for sale in the United States is performed on a chassis dynamometer, a kind of stationary treadmill that simulates the forces acting on the vehicle during real world driving. Dynamometer testing is required by the United State Environmental Protection Agency (US EPA) for emissions certification and fuel economy testing, both for labeling purposes and for compliance with Corporate Average Fuel Economy, or CAFE, standards. Real world models specific to every vehicle tested, called “road load models,” are used during testing to ensure the dynamometer accurately simulates the real world frictional losses a vehicle experiences during operation on the road. These models are specific to every vehicle tested for fuel economy. For vehicles having a variety of body configurations, like the F-150 and Ranger, each configuration and weight class (grouped according to “equivalent test weight” by the EPA) will have its own unique model. The road load model is obtained by performing a vehicle
“coastdown,” a process whereby the time to decelerate a vehicle from a high speed is measured. The standardized technique for performing a coastdown is prescribed
010825-11/1171942 V1 - 47 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.56 Page 56 of 225
in the Code of Federal Regulations, which references the use of Society or
Automotive Engineering (SAE) Standard J2263.
95. In the case of both the 2018 F-150 tested and the 2019 Ranger, the road load obtained in the J2263 coastdown for each vehicle was found to have more resistance (which would result in more fuel consumption) than the road load models reported to the EPA.
96. In order to accurately measure fuel efficiency, the dynamometer rollers must simulate the parasitic frictional forces a vehicle would experience if it were to be driving on the road. The quadratic function below replicates these forces (a combination of driveline parasitic losses, rolling resistance, and aerodynamic drag). The coastdown test yields the coefficients (A, B, and C below) that are used to model a particular vehicle’s road load. In certification documents and the EPA fuel economy test database, these are often referred to as the “target coefficients:” ����� � � �∙� �∙� , where V is the speed of the
vehicle.
97. Once a vehicle’s target coefficients are obtained, the vehicle is
calibrated, or “matched,” to the dynamometer to determine the force the
dynamometer must apply to simulate the target road load. The “match” accounts
for the friction and inertia inherent in the dynamometer’s driveline and rolls. This
process produces a data set called the “Set Coefficients,” values specific to a
010825-11/1171942 V1 - 48 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.57 Page 57 of 225
particulate vehicle and a particular dynamometer calibration. Once the set
coefficients are obtained, the dynamometer can accurately replicate the weight (or
inertia) of the vehicle as well as the road load forces. The processes required by the
Code of Federal Regulations, as well as SAE J2264, were strictly followed to
match the vehicle to the dynamometer and to perform fuel economy testing.
98. The 2018 Ford F-150 SuperCrew and 2019 Ford Ranger SuperCrew
used for testing were selected to replicate vehicles presented in the US EPA fuel economy test database.30 The EPA database provides vehicle and test data details including, cab length, drivetrain (4 wheel drive vs 2 wheel drive), axle ratio, engine, and transmission. Furthermore, the database provides the road load model, and the FTP-75, and HWFET results presented to the US EPA to certify the fuel economy. SAE J2263 and EPA Guidance Letter CD-15-04 provided selection criteria for tire size and trim options based on vehicle population statistics. The test-truck configurations are shown in Table 1.
Table 1 - Test Vehicles MY/Make Model Cab Style Drivetrain Axle Engine Transmission Equivalent Ratio Test Weight (lbs) 2018 Ford F-150 SuperCrew 4x2 3.55 2.7L V6 10 Speed 5,000 (4 door) Ecoboost Auto 2019 Ford Ranger SuperCrew 4x2 3.73 2.3L I4 10 Speed 4,750 (4 door) Ecoboost Auto
30 https://www.epa.gov/compliance-and-fuel-economy-data/data-cars-used- testing-fuel-economy.
010825-11/1171942 V1 - 49 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.58 Page 58 of 225
99. In preparation for coastdown testing the trucks and tires were aged to just over 4,000 miles as directed by SAE J2263. The trucks were fitted with an anemometer on a preceding boom, GPS antennae, and an eDAQ XR Lite data acquisition system. The body was checked for any damage that might affect aerodynamic drag. Tire tread depths and pressures were measured. The brakes were checked for contact and the alignment was checked and adjusted as necessary. The F-150 was loaded with sandbags to a scale weight of 4,990 lbs. and the Ranger to 4,750 lbs. The trucks were warmed to operating temperature, as per
SAE J2263, by driving for more than 30 min at 50 mph. Once warmed, the tire pressures were re-adjusted and the truck immediately tested.
100. The coastdown test-driver accelerated the test truck to approximately
80 mph, placed the transmission into neutral, and coasted the truck until deceleration reduced the speed below 9 mph. This process was repeated for each truck 12 times: 6 in each direction. Truck speed, time, apparent wind velocity, track temperature, ambient temperature, and pressure were measured and recorded for each run. This date was used to generate the force target coefficients listed in
Table 2 and compared to the EPA Fuel Economy Database target coefficients.
010825-11/1171942 V1 - 50 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.59 Page 59 of 225
Table 2 - Target Coefficients (A,B, and C) from Coastdown Tests with Comparison to Values from EPA Database Target Ford F-150 Ford Ranger Coefficients From Test From EPA From From EPA Database Test Database A (lbf) 25.1113 26.570 23.7939 31.540 B (lbf/mph) 0.9725 0.05130 0.8954 0.29320 C (lbf/mph^2) 0.0273 0.03385 0.0288 0.03433
101. The quadratic coefficients above are used to tune the dynamometer
during the dynamometer match. The effects of these different road load
coefficients can be seen in Figure 1.
Comparison of EPA and Measured Road Load Models 300.0
250.0
200.0
150.0 EPA Reported Road Load Measured Road Load 100.0 Road Load Force (lbf)
50.0
0.0 01020304050607080 Speed (mph)
Figure 1 – MY 2018 Ford F-150 Road Load Force 102. The coefficients Ford supplied to the EPA underestimate the force
acting on the truck. This underestimation of force yields the over estimation of fuel
economy. In the speed ranges where the road load has the greatest effect on overall
010825-11/1171942 V1 - 51 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.60 Page 60 of 225
engine load, road load forces are some 20-35% higher than those values reported to
EPA.
103. The Ranger measured road load model produces is some 5-8% higher in those same speed ranges, see Figure 2.
Figure 2 – MY 2019 Ford Ranger Road Load Drag Force 104. Fuel economy was quantified on both the FTP-75 and HWFET cycles in strict accordance with the federal regulations by accounting for both the fuel
properties and the carbon-containing emissions from the test cycles. Testing was
performed using Tier 2 gasoline, again as prescribed by regulations and as
presented in the EPA fuel economy database. The fuel economy values calculated
from FTP-75 and HWFET results were used to calculate label fuel economy using
010825-11/1171942 V1 - 52 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.61 Page 61 of 225
the derived 5-cycle method specified in 40 CFR § 600.115-1131 and shown in the
equations below;
1 ���� �� ��������� ���� ��������� ��� �� And for highway fuel efficiency;
1 ���ℎ��� �� ���ℎ��� ����� ���ℎ��� ��������� ����� �� 105. The respective slopes and intercepts are created from a regression of
fuel economies across multiple vehicles. These values are periodically published
by the EPA Administrator. The coefficients for the model years corresponding to
the trucks tested are shown in Table 3.
Table 3 Current Derived 5-cycle Coefficients. Source CD-15-15 Coefficients of Model Year 2017 and Later City Intercept 0.004091 City Slope 1.1601 Highway Intercept 0.003191 Highway Slope 1.2945
31 Current fuel economy regulations require that every manufacturer test their vehicle fuel economy using the same 5 test cycles used for emissions testing (FTP- 75, HWFET, US06, SC03, and Cold CO). A complex calculation is used based on the results of each of those tests to determine the “City” and “Highway” fuel economy to be used on the Monroney label. If the emissions test vehicle used for emissions certification passes a “litmus test,” the EPA allows a “derived 5 cycle” fuel economy calculation that is based on the results of two tests only: the FTP-75 and HWFET. The purpose of this litmus test is to reduce the number of total tests manufacturers must perform to test for fuel economy. Because the 2019 Ford Ranger and 2018 Ford F-150 both pass the litmus test in their certification applications, the “derived 5 cycle” calculation is used.
010825-11/1171942 V1 - 53 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.62 Page 62 of 225
106. The calculated fuel economies obtained from testing are compared to the fuel economies presented to the EPA in the application for certification and each vehicle’s Monroney label in Table 4.
Table 4 - Fuel Economy Comparison Ford F-150 Ford Ranger FE FE FE FE FE FE Measured EPA Monroney Measured EPA Monroney App App City (mpg) 17.7 19.6 20 18.3 20.0 20 Highway (mpg) 22.7 26.6 26 23.4 25.0 25 Combined (mpg) 20.0 22.8 22 20.6 22.3 22
107. For the Ford F-150, if the measured fuel economy values are rounded
to the nearest whole number, as prescribed for Monroney labeling calculations, the
resulting city fuel economy label would be 18 mpg for city driving, 23 mph for
highway driving, and 20 mph combined. Compared to the EPA label, this
represents a difference in fuel economy of 2 mpg for the city (10%), 3 mpg highway (12%), and 2 mpg combined (9%). The certification application states a
full useful life of 150,000 miles. Over this lifetime mileage, there will be an
additional 833 gallons consumed for city driving, 752 gallons for highway driving,
and 682 gallons combined. Based on the current national average fuel price of
$2.79, this would represent an added lifetime fuel cost of $2,324, $2,098, and
$1,903 for city, highway, and combined, respectively.
108. For the Ford Ranger, if the measured fuel economy values are rounded to the nearest whole number, as prescribed for Monroney labeling
010825-11/1171942 V1 - 54 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.63 Page 63 of 225
calculations, the resulting city fuel economy label would be 18 mpg for city
driving, 23 mph for highway driving, and 21 mph combined. Compared to the EPA
label, this represents a loss in fuel economy of 2 mpg for the city (10%), 2 mpg
highway (8%), and 1 mpg combined (5%). The certification application states a
full useful life of 150,000 miles. Over this lifetime mileage, there will be an
additional 833 gallons for city driving, 522 gallons for highway driving, and 325
gallons combined. Based on the current national average fuel price of $2.79, this
would represent an added lifetime fuel cost of $2,324, $1,456, and $907 for city,
highway, and combined, respectively.
109. The difference in fuel consumption and money spent over the 150,000
mile life of the vehicles is summarized in Table 5 below.
Table 5 – Lifetime Additional Fuel Consumed and Money Spend on Fuel Based on Actual Testing Compared to EPA Reported Valued Ford F-150 Ford Ranger Gallons $ Gallons $ City (mpg) 833 $2,324 833 $2,324 Highway (mpg) 752 $2,098 522 $1,456 Combined (mpg) 682 $1,903 325 $907
Ford’s History of Cheating
110. Ford is the granddaddy of emissions cheaters. The recent
Volkswagen emissions cheating debacle is definitely not the first. In 1973, Ford
and Volkswagen were caught in the EPA’s first investigation into emission
cheating devices.
010825-11/1171942 V1 - 55 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.64 Page 64 of 225
111. Ford was caught again in 1998, using a cheat device in 60,000
Econoline vans, which resulted in a multi-million-dollar settlement with the EPA.32
112. Ford was caught just last year, cheating on emissions certification for
over 500,000 heavy-duty diesel trucks. Ford was sued by the undersigned firm for
this cheat method, and the litigation is ongoing.
113. But Ford learned the wrong lesson from getting caught. Ford may be
shifting away from cheating the government with cheat devices, finding an easier target for its fraud. Ford is increasingly misrepresenting the fuel efficiency of its vehicles, which is a more indirect way of cheating on emissions requirements.
Through computer modeling, Ford constructs a fuel efficiency for each vehicle that
does not exist in the real world.
114. Ford over-stated the fuel efficiency of its Ford Fusion and C-MAX hybrid vehicles and was sued for it. As a result, “[i]n 2013 and 2014, it lowered the gas mileage ratings on several hybrid cars by one to seven miles per gallon.”33
32 Exhibit 12, “VW Emissions ‘Defeat Device’ Isn’t the First” 9/24/15 article in Autoweek: https://autoweek.com/article/car-news/vw-emissions-defeat-device- isnt-first. 33 Exhibit 2, https://www.nytimes.com/2019/02/21/business/ford- emissions.html?module=inline.
010825-11/1171942 V1 - 56 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.65 Page 65 of 225
Ford advertising for the Ranger emphasizes fuel economy. 115. Even after Ford employees had come forward about the cheating,
Ford’s media center touted the 2019 Ranger truck as having amazing performance without compromise, and the claims of its fuel efficiency are front and center:
With EPA-estimated fuel economy ratings of 21 mpg city, 26 mpg highway and 23 mpg combined, 2019 Ford Ranger is the most fuel-efficient gas- powered midsize pickup in America
December 11, 2018 Ford Media Press Release titled, “Adventure Further: All-New
Ford Ranger Rated Most Fuel-Efficient Gas-Powered Midsize Pickup in
America.”34
34 Exhibit 4, https://media.ford.com/content/fordmedia/fna/us/en/news/2018/12/11/ford-ranger- rated-most-fuel-efficient-gas-powered-midsize-pickup.html.
010825-11/1171942 V1 - 57 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.66 Page 66 of 225
116. Ford’s claim of most fuel efficient in its class is repeated in sales brochures for the 2019 Ranger35:
Ford promotes the F-150 as best in class for fuel economy or publishes MPG estimates to beat its competition. 117. The F-150 is the best-selling vehicle in the United States and has been so for decades. In 2018, Ford sold more than 1.075 million F-150s, a sale every
29.3 seconds. As Ford executive Jim Farley noted, “But it’s our F-Series
35 Exhibit 19, 2019 Ford Ranger brochure.
010825-11/1171942 V1 - 58 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.67 Page 67 of 225
juggernaut that leads the world in sales, capability and smart technology, setting the bar others follow.”36
118. To stimulate F-150 sales and maintain its lead over competitors like the Dodge Ram, Ford announced that the 2018 Ford F-150 would be best in class for fuel economy and/or published inflated MPG estimates.
119. As early as August 2017, based on information from Ford, consumers were told to expect “better fuel economy” in the 2018 F-150.
120. The Monroney sticker for a 2018 F-150 2.7 V637 lists the MPG as
follows:
36 Exhibit 17, https://media.ford.com/content/fordmedia/fna/us/en/news/2019/01 /12/ford-surpasses-1-million-truck-sales-in-2018.html. 37 Exhibit 18.
010825-11/1171942 V1 - 59 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.68 Page 68 of 225
121. An August 10, 2017 cnet.com article “2018 Ford F-150 touts best-in- class towing, payload, fuel economy” states:
Buyers have a choice of five different engines. The base offering is a 290-horsepower 3.3-liter V6, followed by a 325-hp 2.7-liter turbo V6. In the middle of the range is the 5.0-liter V8 with 395 horsepower. The top two engine
010825-11/1171942 V1 - 60 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.69 Page 69 of 225
choices are both 3.5-liter turbocharged V6s -- one putting out 375 horsepower, and the other putting out 450.[38]
122. The cnet.com article emphasizes fuel economy:
With these new engines comes better fuel economy. And once again, Ford gets to claim best-in-class, thanks to the 2.7-liter V6, which achieves 20 mpg city and 26 mpg highway in 2WD. The 3.3-liter V6 isn’t very far behind it at 19 mpg city and 25 mpg highway. The thirstiest engine of the bunch is the high-output 3.5-liter turbo V6, which still isn’t too bad at 15 mpg city and 18 mpg highway.39
123. The 2018 F-150 brochure40 lists the estimated fuel economy for the various types of 150s:
38 Exhibit 20, https://www.cnet.com/roadshow/news/2018-ford-f-150-touts- best-in-class-towing-payload-fuel-economy/ (last visited July 19, 2019) (emphasis in original). 39 Id. 40 Exhibit 21, 2018 Ford F-150 brochure.
010825-11/1171942 V1 - 61 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.70 Page 70 of 225
010825-11/1171942 V1 - 62 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.71 Page 71 of 225
010825-11/1171942 V1 - 63 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.72 Page 72 of 225
010825-11/1171942 V1 - 64 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.73 Page 73 of 225
010825-11/1171942 V1 - 65 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.74 Page 74 of 225
010825-11/1171942 V1 - 66 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.75 Page 75 of 225
Economic harm 124. As a result of Defendant’s unfair, deceptive, and/or fraudulent business practices, Plaintiffs did not receive the fuel efficiency that was advertised
and will incur increased fuel costs over the life of their vehicle. Had Ford told the
truth, that it was cheating on its coastdown testing, plaintiffs would not have
bought their vehicle or would have paid substantially less.
TOLLING OF THE STATUTE OF LIMITATIONS
Discovery rule tolling 125. Class members had no way of knowing about Ford’s deception with respect to the Coastdown Cheating Vehicles’ performance in real-world driving.
To be sure, Ford continues to market the Coastdown Cheating Vehicles, including the 2019 Ranger, with false representations of its fuel efficiency. The Coastdown
Cheating Vehicles also contain a computerized mileage “cheat device” that constantly misrepresents the fuel efficiency to consumers as they drive.
126. Within the period of any applicable statutes of limitation, Plaintiffs
and members of the proposed Class could not have discovered through the exercise
of reasonable diligence that Ford was concealing the conduct complained of herein
and misrepresenting the company’s true position with respect to the performance
of the Coastdown Cheating Vehicles.
127. Plaintiffs and the other Class members did not discover, and did not
know of, facts that would have caused a reasonable person to suspect that Ford did
010825-11/1171942 V1 - 67 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.76 Page 76 of 225
not report information within its knowledge to federal and state authorities, its
dealerships, or consumers; nor would a reasonable and diligent investigation have
disclosed that Ford had concealed information about the true emissions of the
Coastdown Cheating Vehicles, which was discovered by Plaintiffs only shortly
before this action was filed. Nor in any event would such an investigation on the
part of Plaintiffs and other Class members have disclosed that Ford valued profits
over truthful marketing and compliance with the law.
128. For these reasons, all applicable statutes of limitation have been tolled
by operation of the discovery rule with respect to claims as to the Coastdown
Cheating Vehicles.
Fraudulent concealment tolling
129. All applicable statutes of limitation have also been tolled by Ford’s
knowing and active fraudulent concealment and denial of the facts alleged herein
throughout the period relevant to this action.
130. Instead of disclosing its fuel economy and emissions testing scheme,
Ford continues to falsely represent that the Coastdown Cheating Vehicles have
higher fuel economy and lower emissions than advertised.
010825-11/1171942 V1 - 68 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.77 Page 77 of 225
Estoppel 131. Ford was under a continuous duty to disclose to Plaintiffs and the other Class members the true character, quality, and nature of the Coastdown
Cheating Vehicles’ fuel efficiency and emissions.
132. Ford knowingly, affirmatively, and actively concealed or recklessly
disregarded the true nature, quality, and character of the fuel efficiency and
emissions in the Coastdown Cheating Vehicles and continues to do so in its
advertising and brochures for continued sale of these vehicles.
133. Based on the foregoing, Ford is estopped from relying on any statutes
of limitations in defense of this action.
CLASS ALLEGATIONS 134. Plaintiffs bring this action on behalf of themselves and as a class
action, pursuant to the provisions of Rules 23(a) and (b)(3) of the Federal Rules of
Civil Procedure, on behalf of the following class (collectively, the “Class”):
All persons who purchased or leased a Ford vehicle whose published EPA fuel economy ratings, as printed on the vehicles’ window sticker, were more than the fuel economy rating produced by a properly conducted applicable federal mileage test. The vehicles in the Class include but are not limited to the model year 2019 Ford Ranger and the 2018 and 2019 Ford F-150.
The class is likely to also include other vehicles, as well as other model year
vehicles. Plaintiffs reserve the right to amend the proposed class after additional
information is received from Ford Motor Company in discovery.
010825-11/1171942 V1 - 69 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.78 Page 78 of 225
135. Excluded from the Class are individuals who have personal injury claims resulting from the high emissions in the Coastdown Cheating Vehicles.
Also excluded from the Class are Ford and its subsidiaries and affiliates; all persons who make a timely election to be excluded from the Class; governmental entities; the Judge to whom this case is assigned and his/her immediate family; and
Plaintiffs’ counsel. Plaintiffs reserve the right to revise the Class definition based upon information learned through discovery.
136. Certification of Plaintiffs’ claims for class-wide treatment is
appropriate because Plaintiffs can prove the elements of their claims on a class-
wide basis using the same evidence as would be used to prove those elements in
individual actions alleging the same claim.
137. This action has been brought and may be properly maintained on
behalf of the Class proposed herein under Federal Rule of Civil Procedure 23.
138. Numerosity. Federal Rule of Civil Procedure 23(a)(1): The members of the Class are so numerous and geographically dispersed that individual joinder of all Class members is impracticable. For purposes of this complaint, Plaintiffs allege that there are in excess of an estimated 1,000,000 or more vehicles in the
Class. The precise number of Class members is unknown to Plaintiffs but may be ascertained from Ford’s books and records. Class members may be notified of the pendency of this action by recognized, Court-approved notice dissemination
010825-11/1171942 V1 - 70 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.79 Page 79 of 225
methods, which may include U.S. Mail, electronic mail, Internet postings, and/or
published notice.
139. Commonality and Predominance: Federal Rule of Civil Procedure
23(a)(2) and 23(b)(3): This action involves common questions of law and fact, which predominate over any questions affecting individual Class members, including, without limitation:
a) Whether Ford engaged in the conduct alleged herein;
b) Whether Ford designed, advertised, marketed, distributed, leased, sold, or otherwise placed Coastdown Cheating Vehicles into the stream of commerce in the United States;
c) Whether Ford provided false information to consumers regarding the fuel efficiency and emissions of the Coastdown Cheating Vehicles;
d) Whether Ford provided false information to the EPA regarding the fuel efficiency and emissions of the Coastdown Cheating Vehicles;
e) Whether Ford knew, and for how long, that the testing certifying the fuel efficiency and emissions of the Coastdown Cheating Vehicles was tainted by inaccurate information;
f) Whether Ford intentionally designed, manufactured, marketed, and distributed Coastdown Cheating Vehicles with misleading fuel efficiency and emissions ratings;
g) Whether Plaintiffs and the other Class members overpaid for their vehicles at the point of sale; and
h) Whether Plaintiffs and the other Class members are entitled to damages and other monetary relief and, if so, in what amount.
010825-11/1171942 V1 - 71 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.80 Page 80 of 225
140. Typicality: Federal Rule of Civil Procedure 23(a)(3): Plaintiffs’ claims are typical of the other Class members’ claims because, among other things, all Class members were comparably injured through Ford’s wrongful conduct as described above.
141. Adequacy: Federal Rule of Civil Procedure 23(a)(4): Plaintiffs are adequate Class representatives because their interests do not conflict with the interests of the other members of the Class they seek to represent; Plaintiffs have retained counsel competent and experienced in complex class action litigation; and
Plaintiffs intend to prosecute this action vigorously. Plaintiffs’ counsel have been pioneers in uncovering emissions misconduct, including doing so in the diesel
Ford, Mercedes, General Motors, and FCA emissions cases. The Class’s interests will be fairly and adequately protected by Plaintiffs and their counsel.
142. Superiority: Federal Rule of Civil Procedure 23(b)(3): A class action is superior to any other available means for the fair and efficient adjudication of this controversy, and no unusual difficulties are likely to be encountered in the management of this class action. The damages or other financial detriment suffered by Plaintiffs and the other Class members are relatively small compared to the burden and expense that would be required to individually litigate their claims against Ford, so it would be impracticable for the members of the Classes to individually seek redress for Ford’s wrongful conduct. Even if Class members
010825-11/1171942 V1 - 72 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.81 Page 81 of 225
could afford individual litigation, the court system could not. Individualized litigation creates a potential for inconsistent or contradictory judgments and
increases the delay and expense to all parties and the court system. By contrast, the class action device presents far fewer management difficulties and provides the benefits of single adjudication, economy of scale, and comprehensive supervision by a single court.
COUNT 1
VIOLATION OF THE GEORGIA FAIR BUSINESS PRACTICES ACT (GA. CODE ANN. § 10-1-390 et seq.) 143. Plaintiff Jamar Haynes hereby incorporates by reference the allegations contained in the preceding paragraphs of this complaint.
144. This claim is included here for notice purposes only. Once the statutory notice period has expired, Plaintiff will amend the complaint to bring this claim on behalf of Georgia purchasers who are members of the Class.
145. The Georgia Fair Business Practices Act (Georgia FBPA) declares
“[u]nfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce” to be unlawful, GA. CODE ANN.
§ 101-393(b), including but not limited to “representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have”; “[r]epresenting that goods or services are of a particular standard, quality, or grade . . . if they are of another”; and “[a]dvertising goods or
010825-11/1171942 V1 - 73 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.82 Page 82 of 225
services with intent not to sell them as advertised and certified.” GA. CODE ANN.
§ 10-1-393(b).
146. Plaintiff and Georgia Class members are “consumers” within the meaning of GA. CODE ANN. § 10-1-393(b).
147. Ford engaged in “trade or commerce” within the meaning of GA.
CODE ANN. § 10-1-393(b).
148. Once the statutory notice period has expired, Plaintiff will amend to seek damages and exemplary damages (for intentional violations) per GA. CODE
ANN. § 10-1-399(a).
149. Plaintiff will also amend to seek an order enjoining Ford’s unfair,
unlawful, and/or deceptive practices, attorneys’ fees, and any other just and proper
relief available under the Georgia FBPA per GA. CODE ANN. § 10-1-399.
150. On June 20, 2019, Plaintiffs sent a letter complying with GA. CODE
ANN. § 10-1-399(b) to Ford.
COUNT 2
VIOLATION OF THE GEORGIA UNIFORM DECEPTIVE TRADE PRACTICES ACT (GA. CODE ANN § 10-1-370 et seq.) 151. Plaintiff hereby incorporates by reference the allegations contained in the preceding paragraphs of this complaint.
010825-11/1171942 V1 - 74 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.83 Page 83 of 225
152. This claim is brought by Plaintiff on behalf of Georgia purchasers who are members of the Class.
153. Georgia’s Uniform Deceptive Trade Practices Act (Georgia UDTPA) prohibits “deceptive trade practices,” which include “representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have”; “[r]epresenting that goods or services are of a particular standard, quality, or grade . . . if they are of another”; and “[a]dvertising goods or services with intent not to sell them as advertised and certified.” GA.
CODE ANN. § 10-1-393(b).
154. Ford, Plaintiff, and Georgia Class members are “persons” within the meaning of GA. CODE ANN. § 10-1-371(5).
155. Plaintiff seeks an order enjoining Ford’s unfair, unlawful, and/or
deceptive practices, attorneys’ fees, and any other just and proper relief available
under GA. CODE ANN. § 10-1-373.
COUNT 3
BREACH OF CONTRACT (BASED ON GEORGIA LAW)
156. Plaintiff incorporates by reference all paragraphs as though fully set forth herein.
157. This claim is brought by the Georgia Plaintiff on behalf of Georgia purchasers who are members of the Class.
010825-11/1171942 V1 - 75 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.84 Page 84 of 225
158. Ford’s misrepresentations and omissions alleged herein, including
Ford’s failure to disclose the existence of the Coastdown Cheating Vehicles’ onboard fuel efficiency cheat device and lower fuel economy than advertised and certified, caused Plaintiff and the other Georgia Class members to make their purchases or leases of the Coastdown Cheating Vehicles. Absent those misrepresentations and omissions, Plaintiff and the other Georgia Class members would not have purchased or leased the Coastdown Cheating Vehicles, would not have purchased or leased the Coastdown Cheating Vehicles at the prices they paid, and/or would have purchased or leased less expensive alternative vehicles that did not contain the reduced mileage or fuel efficiency cheat device. Accordingly,
Plaintiff and the other Georgia Class members overpaid for the Coastdown
Cheating Vehicles and did not receive the benefit of their bargain.
159. Each and every sale or lease of a Coastdown Cheating Vehicle constitutes a contract between Ford and the purchaser or lessee. Ford breached these contracts by selling or leasing to Plaintiff and the other Georgia Class members defective Coastdown Cheating Vehicles and by misrepresenting or failing to disclose that the Coastdown Cheating Vehicles do not provide the fuel efficiency that was advertised and certified, and their mileage is far worse than a reasonable consumer would expect given the premium paid for these vehicles and the representation made by Ford.
010825-11/1171942 V1 - 76 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.85 Page 85 of 225
160. As a direct and proximate result of Ford’s breach of contract, Plaintiff and the Class have been damaged in an amount to be proven at trial, which shall include, but is not limited to, all compensatory damages, incidental and consequential damages, and other damages allowed by law.
COUNT 4
FRAUDULENT CONCEALMENT (BASED ON GEORGIA LAW)
161. Plaintiff incorporates by reference all paragraphs as though fully set
forth herein.
162. This claim is brought by the Georgia Plaintiff on behalf of Georgia
purchasers who are members of the Class.
163. Ford intentionally concealed the fact that the Coastdown Cheating
Vehicles do not provide the fuel efficiency that was advertised and certified, and
their mileage is far worse than a reasonable consumer would expect given the premium paid for these vehicles and the representation made by Ford, and Ford acted with reckless disregard for the truth and denied Plaintiff and the other
Georgia Class members information that is highly relevant to their purchasing
decision.
164. Ford further affirmatively misrepresented to Plaintiff in advertising
and other forms of communication, including standard and uniform material
provided with each car that the Coastdown Cheating Vehicles it was selling had no
010825-11/1171942 V1 - 77 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.86 Page 86 of 225
significant defects, had the advertised and certified fuel efficiency, and did not reveal the existence of a mileage cheat device.
165. Ford knew these representations were false when made.
166. The Coastdown Cheating Vehicles purchased or leased by Plaintiff and the other Class members were, in fact, defective, with reduced fuel efficiency and a fuel efficiency cheat device.
167. Ford had a duty to disclose that the Coastdown Cheating Vehicles do not provide the fuel efficiency that was advertised and certified, and their mileage is far worse than a reasonable consumer would expect given the premium paid for these vehicles and the representation made by Ford, because Plaintiff and the other
Georgia Class members relied on Ford’s material representations or omissions of fact that the Coastdown Cheating Vehicles they were purchasing were fuel efficient and free from defects.
168. As alleged in this Complaint, at all relevant times, Ford has held out the Coastdown Cheating Vehicles to be fuel efficient. Ford disclosed certain details about the Coastdown Cheating Vehicles, but nonetheless, Ford intentionally failed to disclose the important facts concerning the lack of fuel efficiency and existence of a fuel efficiency cheat device, making other disclosures about the fuel efficiency deceptive.
010825-11/1171942 V1 - 78 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.87 Page 87 of 225
169. The truth about the lack of fuel efficiency and Ford’s manipulations of certifications and inclusion of a fuel efficiency defeat device was known only to
Ford; Plaintiff and the Georgia Class members did not know of these facts and
Ford actively concealed these facts from Plaintiff and Georgia Class members.
170. Plaintiff and Georgia Class members reasonably relied upon Ford’s deception. They had no way of knowing that Ford’s representations were false and/or misleading. As consumers, Plaintiff and Georgia Class members did not, and could not, unravel Ford’s deception on their own. Rather, Ford intended to deceive Plaintiff and Georgia Class members by concealing the true facts about the
Coastdown Cheating Vehicles’ lack of fuel efficiency.
171. Ford also concealed and suppressed material facts concerning what is evidently the true culture of Ford—one characterized by an emphasis on profits and sales above compliance with federal and state clean air laws and emissions regulations that are meant to protect the public and consumers. It also emphasized profits and sales above the trust that Plaintiff and Georgia Class members placed in its representations.
172. Ford’s false representations were material to consumers, because they concerned the fuel efficiency of the Coastdown Cheating Vehicles, and also because the representations played a significant role in the value of the vehicles.
As Ford well knew, its customers, including Plaintiff and Georgia Class members,
010825-11/1171942 V1 - 79 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.88 Page 88 of 225
highly valued that the vehicles they were purchasing or leasing were fuel efficient, and they paid accordingly.
173. Ford had a duty to disclose that the Coastdown Cheating Vehicles do not provide the fuel efficiency that was advertised and certified, and their mileage is far worse than a reasonable consumer would expect given the premium paid for these vehicles and the representation made by Ford, because details of the true facts were known and/or accessible only to Ford, because Ford had exclusive knowledge as to such facts, and because Ford knew these facts were not known to or reasonably discoverable by Plaintiff or Georgia Class members. Ford also had a duty to disclose because it made general affirmative representations about the qualities of its vehicles with respect to fuel efficiency, which were misleading, deceptive, and incomplete without the disclosure of the additional facts set forth above regarding the actual mileage of its vehicles. Having volunteered to provide information to Plaintiff and Georgia Class members, Ford had the duty to disclose not just the partial truth, but the entire truth. These omitted and concealed facts were material because they directly impact the value of the Coastdown Cheating
Vehicles purchased or leased by Plaintiff and Georgia Class members. Whether an automobile is fuel efficient and whether it accurately measures its own gasoline consumption are material concerns to a consumer. Ford represented to Plaintiff and
Georgia Class members that they were purchasing or leasing fuel efficient
010825-11/1171942 V1 - 80 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.89 Page 89 of 225
vehicles, when in fact the Coastdown Cheating Vehicles do not perform as advertised and certified and do not accurately report their own fuel consumption.
174. Ford actively concealed and/or suppressed these material facts, in whole or in part, to pad and protect its profits and to avoid the perception that its vehicles were not fuel efficient or low emissions, which perception would hurt the
brand’s image and cost Ford money, and it did so at the expense of Plaintiff and
Georgia Class members.
175. Ford has still not made full and adequate disclosures and continues to
defraud Plaintiff and Georgia Class members by concealing material information
regarding the fuel efficiency of its Coastdown Cheating Vehicles.
176. Plaintiff and Georgia Class members were unaware of the omitted
material facts referenced herein, and they would not have acted as they did if they
had known of the concealed and/or suppressed facts, in that they would not have purchased purportedly fuel efficient vehicles manufactured by Ford, and/or would have taken other affirmative steps in light of the information concealed from them.
Plaintiff’s and Georgia Class members’ actions were justified. Ford was in exclusive control of the material facts, and such facts were not generally known to the public, Plaintiff, or Georgia Class members.
177. Accordingly, Ford is liable to Plaintiff and Georgia Class members for damages in an amount to be proven at trial.
010825-11/1171942 V1 - 81 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.90 Page 90 of 225
178. Ford’s acts were done wantonly, maliciously, oppressively, deliberately, with intent to defraud, and in reckless disregard of Plaintiff’s and
Georgia Class members’ rights and the representations that Ford made to them were made in order to enrich Ford. Ford’s conduct warrants an assessment of punitive damages in an amount sufficient to deter such conduct in the future, which amount is to be determined according to proof.
COUNT 5
VIOLATION OF THE ILLINOIS CONSUMER FRAUD AND DECEPTIVE BUSINESS PRACTICES ACT (815 ILCS 505/1, ET SEQ. AND 720 ILCS 295/1A) 179. Plaintiff Cassandra Morrison incorporates by reference all paragraphs as though fully set forth herein.
180. This claim is brought on behalf of the Illinois Class members.
181. Ford is a “person” as that term is defined in 815 ILCS 505/1(c).
182. Plaintiff and the Illinois Class members are “consumers” as that term is defined in 815 ILCS 505/1(e).
183. The Illinois Consumer Fraud and Deceptive Business Practices Act
(Illinois CFA) prohibits “unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or
010825-11/1171942 V1 - 82 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.91 Page 91 of 225
omission of such material fact … in the conduct of trade or commerce … whether any person has in fact been misled, deceived or damaged thereby.” 815 ILCS
505/2.
184. In the course of Ford’s business, it willfully failed to disclose and actively concealed that the Coastdown Cheating Vehicles have much lower fuel economy than represented or than a reasonable consumer would expect in light of
Ford’s advertising campaign, and that the Coastdown Cheating Vehicles contain a
fuel efficiency cheat device. Accordingly, Ford engaged in unfair or deceptive acts
or practices, including but not limited to the use or employment of any deception,
fraud, false pretense, false promise, misrepresentation or the concealment,
suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact in the conduct of trade or commerce as prohibited by the Illinois CFA.
185. In purchasing or leasing the Coastdown Cheating Vehicles, Plaintiff and the other Illinois Class members were deceived by Ford’s failure to disclose the actual fuel economy or presence of a cheat device in the Coastdown Cheating
Vehicles.
186. Plaintiff and Illinois Class members reasonably relied upon Ford’s false misrepresentations. They had no way of knowing that Ford’s representations were false and gravely misleading. As alleged herein, Ford engaged in extremely
010825-11/1171942 V1 - 83 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.92 Page 92 of 225
sophisticated methods of deception. Plaintiff and Illinois Class members did not, and could not, unravel Ford’s deception on their own.
187. Ford’s actions as set forth above occurred in the conduct of trade or commerce.
188. Ford’s unfair or deceptive acts or practices were likely to and did in fact deceive reasonable consumers.
189. Ford intentionally and knowingly misrepresented material facts regarding the Coastdown Cheating Vehicles with an intent to mislead Plaintiff and the Class.
190. Ford knew or should have known that its conduct violated the Illinois
CFA.
191. Ford owed Plaintiff and the Class a duty to disclose the truth about its fuel certification manipulation because Ford:
a. Possessed exclusive knowledge that it manipulated the testing, certification, and onboard vehicle reporting of fuel efficiency;
b. Intentionally concealed the foregoing from Plaintiff and the Class; and/or
c. Made incomplete representations that it manipulated the certification testing and failed to disclose the true fuel economy or presence of a fuel efficiency cheat device in the Coastdown Cheating Vehicles, while purposefully withholding material facts from Plaintiff and the Class that contradicted these representations.
010825-11/1171942 V1 - 84 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.93 Page 93 of 225
192. Ford had a duty to disclose that the Coastdown Cheating Vehicles not provide the fuel efficiency that was advertised and certified, and their mileage is
far worse than a reasonable consumer would expect given the premium paid for
these vehicles and the representation made by Ford, because Plaintiff and the other
Illinois Class members relied on Ford’s material representations that the
Coastdown Cheating Vehicles they were purchasing were fuel efficient, and free
from defects.
193. Ford’s conduct proximately caused injuries to Plaintiff and the other
Illinois Class members.
194. Plaintiff and the other Illinois Class members were injured and
suffered ascertainable loss, injury-in-fact, and/or actual damage as a proximate
result of Ford’s conduct in that Plaintiff and the other Illinois Class members
overpaid for the Coastdown Cheating Vehicles and did not receive the benefit of
their bargain, and their Coastdown Cheating Vehicles have suffered a diminution
in value. These injuries are the direct and natural consequence of Ford’s
misrepresentations and omissions.
195. Ford’s violations present a continuing risk to Plaintiff as well as to the
general public. Ford’s unlawful acts and practices complained of herein affect the
public interest.
010825-11/1171942 V1 - 85 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.94 Page 94 of 225
196. Pursuant to 815 ILCS 505/10a(a), Plaintiff and the Illinois Class members seek monetary relief against Ford in the amount of actual damages, as well as punitive damages because Ford acted with fraud and/or malice and/or was grossly negligent.
197. Plaintiff also seeks punitive damages, attorneys’ fees, and any other just and proper relief available under 815 ILCS § 505/1, et seq. A copy of this
Complaint has been mailed to the Attorney General of the State of Illinois in accordance with 815 ILCS 505/10a(d).
COUNT 6
BREACH OF CONTRACT (BASED ON ILLINOIS LAW) 198. Plaintiff incorporates by reference all paragraphs as though fully set forth herein.
199. This claim is brought by the Illinois Plaintiff on behalf of Illinois purchasers who are members of the Class.
200. Ford’s misrepresentations and omissions alleged herein, including
Ford’s failure to disclose the existence of the Coastdown Cheating Vehicles’ onboard fuel efficiency cheat device and lower fuel economy than advertised and certified, caused Plaintiff and the other Illinois members to make their purchases or leases of the Coastdown Cheating Vehicles. Absent those misrepresentations and omissions, Plaintiff and the other Illinois Class members would not have purchased
010825-11/1171942 V1 - 86 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.95 Page 95 of 225
or leased the Coastdown Cheating Vehicles, would not have purchased or leased the Coastdown Cheating Vehicles at the prices they paid, and/or would have purchased or leased less expensive alternative vehicles that did not contain the reduced mileage or fuel efficiency cheat device. Accordingly, Plaintiff and the other Illinois Class members overpaid for the Coastdown Cheating Vehicles and did not receive the benefit of their bargain.
201. Each and every sale or lease of a Coastdown Cheating Vehicle
constitutes a contract between Ford and the purchaser or lessee. Ford breached
these contracts by selling or leasing to Plaintiff and the other Illinois Class members defective Coastdown Cheating Vehicles and by misrepresenting or failing to disclose that the Coastdown Cheating Vehicles do not provide the fuel efficiency that was advertised and certified, and their mileage is far worse than a reasonable consumer would expect given the premium paid for these vehicles and the representation made by Ford.
202. As a direct and proximate result of Ford’s breach of contract, Plaintiff and the Class have been damaged in an amount to be proven at trial, which shall include, but is not limited to, all compensatory damages, incidental and consequential damages, and other damages allowed by law.
010825-11/1171942 V1 - 87 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.96 Page 96 of 225
COUNT 7
FRAUDULENT CONCEALMENT (BASED ON ILLINOIS LAW) 203. Plaintiff incorporates by reference all paragraphs as though fully set
forth herein.
204. This claim is brought by the Illinois Plaintiff on behalf of Illinois
purchasers who are members of the Class.
205. Ford intentionally concealed the fact that the Coastdown Cheating
Vehicles do not provide the fuel efficiency that was advertised and certified, and
their mileage is far worse than a reasonable consumer would expect given the
premium paid for these vehicles and the representation made by Ford, and Ford
acted with reckless disregard for the truth and denied Plaintiff and the other Illinois
Class members information that is highly relevant to their purchasing decision.
206. Ford further affirmatively misrepresented to Plaintiff in advertising and other forms of communication, including standard and uniform material provided with each car that the Coastdown Cheating Vehicles it was selling had no significant defects, had the advertised and certified fuel efficiency, and did not reveal the existence of a mileage cheat device.
207. Ford knew these representations were false when made.
010825-11/1171942 V1 - 88 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.97 Page 97 of 225
208. The Coastdown Cheating Vehicles purchased or leased by Plaintiff and the other Class members were, in fact, defective, with reduced fuel efficiency and a fuel efficiency cheat device.
209. Ford had a duty to disclose that the Coastdown Cheating Vehicles do not provide the fuel efficiency that was advertised and certified, and their mileage is far worse than a reasonable consumer would expect given the premium paid for these vehicles and the representation made by Ford, because Plaintiff and the other
Illinois Class members relied on Ford’s material representations or omissions of fact that the Coastdown Cheating Vehicles they were purchasing were fuel efficient and free from defects.
210. As alleged in this Complaint, at all relevant times, Ford has held out the Coastdown Cheating Vehicles to be fuel efficient. Ford disclosed certain details about the Coastdown Cheating Vehicles, but nonetheless, Ford intentionally failed to disclose the important facts concerning the lack of fuel efficiency and existence of a fuel efficiency cheat device, making other disclosures about the fuel efficiency deceptive.
211. The truth about the lack of fuel efficiency and Ford’s manipulations of certifications and inclusion of a fuel efficiency defeat device was known only to
Ford; Plaintiff and the Illinois Class members did not know of these facts and Ford actively concealed these facts from Plaintiff and Illinois Class members.
010825-11/1171942 V1 - 89 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.98 Page 98 of 225
212. Plaintiff and Illinois Class members reasonably relied upon Ford’s deception. They had no way of knowing that Ford’s representations were false and/or misleading. As consumers, Plaintiff and Illinois Class members did not, and could not, unravel Ford’s deception on their own. Rather, Ford intended to deceive
Plaintiff and Illinois Class members by concealing the true facts about the
Coastdown Cheating Vehicles’ lack of fuel efficiency.
213. Ford also concealed and suppressed material facts concerning what is evidently the true culture of Ford—one characterized by an emphasis on profits and sales above compliance with federal and state clean air laws and emissions regulations that are meant to protect the public and consumers. It also emphasized profits and sales above the trust that Plaintiff and Illinois Class members placed in its representations.
214. Ford’s false representations were material to consumers, because they concerned the fuel efficiency of the Coastdown Cheating Vehicles, and also because the representations played a significant role in the value of the vehicles.
As Ford well knew, its customers, including Plaintiff and Illinois Class members, highly valued that the vehicles they were purchasing or leasing were fuel efficient, and they paid accordingly.
215. Ford had a duty to disclose that the Coastdown Cheating Vehicles do not provide the fuel efficiency that was advertised and certified, and their mileage
010825-11/1171942 V1 - 90 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.99 Page 99 of 225
is far worse than a reasonable consumer would expect given the premium paid for these vehicles and the representation made by Ford, because details of the true facts were known and/or accessible only to Ford, because Ford had exclusive knowledge as to such facts, and because Ford knew these facts were not known to or reasonably discoverable by Plaintiff or Illinois Class members. Ford also had a
duty to disclose because it made general affirmative representations about the qualities of its vehicles with respect to fuel efficiency, which were misleading, deceptive, and incomplete without the disclosure of the additional facts set forth above regarding the actual mileage of its vehicles. Having volunteered to provide information to Plaintiff and Illinois Class members, Ford had the duty to disclose not just the partial truth, but the entire truth. These omitted and concealed facts were material because they directly impact the value of the Coastdown Cheating
Vehicles purchased or leased by Plaintiff and Illinois Class members. Whether an automobile is fuel efficient and whether it accurately measures its own gasoline consumption are material concerns to a consumer. Ford represented to Plaintiff and
Illinois Class members that they were purchasing or leasing fuel efficient vehicles, when in fact the Coastdown Cheating Vehicles do not perform as advertised and certified and do not accurately report their own fuel consumption.
216. Ford actively concealed and/or suppressed these material facts, in whole or in part, to pad and protect its profits and to avoid the perception that its
010825-11/1171942 V1 - 91 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.100 Page 100 of 225
vehicles were not fuel efficient or low emissions, which perception would hurt the
brand’s image and cost Ford money, and it did so at the expense of Plaintiff and
Illinois Class members.
217. Ford has still not made full and adequate disclosures and continues to
defraud Plaintiff and Illinois Class members by concealing material information
regarding the fuel efficiency of its Coastdown Cheating Vehicles.
218. Plaintiff and Illinois Class members were unaware of the omitted
material facts referenced herein, and they would not have acted as they did if they
had known of the concealed and/or suppressed facts, in that they would not have
purchased purportedly fuel efficient vehicles manufactured by Ford, and/or would
have taken other affirmative steps in light of the information concealed from them.
Plaintiff’s and Illinois Class members’ actions were justified. Ford was in
exclusive control of the material facts, and such facts were not generally known to
the public, Plaintiff, or Illinois Class members.
219. Accordingly, Ford is liable to Plaintiff and Illinois Class members for
damages in an amount to be proven at trial.
220. Ford’s acts were done wantonly, maliciously, oppressively,
deliberately, with intent to defraud, and in reckless disregard of Plaintiff’s and
Illinois Class members’ rights and the representations that Ford made to them were
made in order to enrich Ford. Ford’s conduct warrants an assessment of punitive
010825-11/1171942 V1 - 92 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.101 Page 101 of 225
damages in an amount sufficient to deter such conduct in the future, which amount
is to be determined according to proof.
COUNT 8
VIOLATION OF THE LOUISIANA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW (LA. REV. STAT. § 51:1401 et seq.)
221. Plaintiff Benjamin Bischoff realleges and incorporates by reference all
paragraphs as though fully set forth herein.
222. This claim is brought by Plaintiff on behalf of Louisiana purchasers
who are members of the Class
223. Ford, Plaintiff, and the Louisiana Class members are “persons” within
the meaning of LA. REV. STAT. § 51:1402(8).
224. Plaintiff and Louisiana Class members are “consumers” within the
meaning of LA. REV. STAT. § 51:1402(1).
225. Ford engaged in “trade” or “commerce” within the meaning of LA.
REV. STAT. § 51:1402(9).
226. The Louisiana Unfair Trade Practices and Consumer Protection Law
(Louisiana CPL) makes unlawful “deceptive acts or practices in the conduct of any
trade or commerce.” LA. REV. STAT. § 51:1405(A). Ford participated in
misleading, false, or deceptive acts that violated the Louisiana CPL.
010825-11/1171942 V1 - 93 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.102 Page 102 of 225
227. Ford also engaged in unlawful trade practices by employing
deception, deceptive acts or practices, fraud, misrepresentations, or concealment,
suppression or omission of any material fact with intent that others rely upon such
concealment, suppression or omission, in connection with the sale of Coastdown
Cheating Vehicles.
228. Ford’s unfair or deceptive acts or practices were likely to and did in
fact deceive reasonable consumers.
229. Ford intentionally and knowingly misrepresented material facts
regarding the Coastdown Cheating Vehicles with intent to mislead Plaintiff and the
Louisiana Class.
230. Ford knew or should have known that its conduct violated the
Louisiana CPL.
231. Ford owed Plaintiff a duty to disclose the emissions in the Coastdown
Cheating Vehicles, because Ford:
a. Possessed exclusive knowledge;
b. Intentionally concealed the foregoing from Plaintiffs; and/or
c. Made incomplete representations about the fuel efficiency and performance of the Coastdown Cheating Vehicles, while purposefully withholding material facts from Plaintiff that contradicted these representations, and including a mileage cheat device that actively and continually misrepresents
010825-11/1171942 V1 - 94 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.103 Page 103 of 225
the fuel economy of the Coastdown Cheating Vehicles.
232. Plaintiff and the Louisiana Class suffered ascertainable loss caused by
Ford’s misrepresentations and its concealment of and failure to disclose material
information.
233. As a direct and proximate result of Ford’s violations of the Louisiana
CPL, Plaintiff and the Louisiana Class have suffered injury-in-fact and/or actual
damage.
234. Pursuant to LA. REV. STAT. § 51:1409, Plaintiff and the Louisiana
Class seek to recover actual damages in an amount to be determined at trial; treble
damages for Ford’s knowing violations of the Louisiana CPL; an order enjoining
Ford’s unfair, unlawful, and/or deceptive practices; declaratory relief; attorneys’
fees; and any other just and proper relief available under LA. REV. STAT.
§ 51:1409.
COUNT 9
BREACH OF CONTRACT (BASED ON LOUISIANA LAW)
235. Plaintiff incorporates by reference all paragraphs as though fully set
forth herein.
236. This claim is brought by the Louisiana Plaintiff on behalf of Louisiana
purchasers who are members of the Class.
010825-11/1171942 V1 - 95 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.104 Page 104 of 225
237. Ford’s misrepresentations and omissions alleged herein, including
Ford’s failure to disclose the existence of the Coastdown Cheating Vehicles’
onboard fuel efficiency cheat device and lower fuel economy than advertised and
certified, caused Plaintiff and the other Louisiana Class members to make their
purchases or leases of the Coastdown Cheating Vehicles. Absent those
misrepresentations and omissions, Plaintiff and the other Louisiana Class members
would not have purchased or leased the Coastdown Cheating Vehicles, would not
have purchased or leased the Coastdown Cheating Vehicles at the prices they paid,
and/or would have purchased or leased less expensive alternative vehicles that did
not contain the reduced mileage or fuel efficiency cheat device. Accordingly,
Plaintiff and the other Louisiana Class members overpaid for the Coastdown
Cheating Vehicles and did not receive the benefit of their bargain.
238. Each and every sale or lease of a Coastdown Cheating Vehicle
constitutes a contract between Ford and the purchaser or lessee. Ford breached
these contracts by selling or leasing to Plaintiff and the other Louisiana Class
members defective Coastdown Cheating Vehicles and by misrepresenting or
failing to disclose that the Coastdown Cheating Vehicles do not provide the fuel
efficiency that was advertised and certified, and their mileage is far worse than a
reasonable consumer would expect given the premium paid for these vehicles and
the representation made by Ford.
010825-11/1171942 V1 - 96 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.105 Page 105 of 225
239. As a direct and proximate result of Ford’s breach of contract, Plaintiff
and the Class have been damaged in an amount to be proven at trial, which shall
include, but is not limited to, all compensatory damages, incidental and
consequential damages, and other damages allowed by law.
COUNT 10
FRAUDULENT CONCEALMENT (BASED ON LOUISIANA LAW)
240. Plaintiff incorporates by reference all paragraphs as though fully set
forth herein.
241. This claim is brought by the Louisiana Plaintiff on behalf of Louisiana
purchasers who are members of the Class.
242. Ford intentionally concealed the fact that the Coastdown Cheating
Vehicles do not provide the fuel efficiency that was advertised and certified, and
their mileage is far worse than a reasonable consumer would expect given the
premium paid for these vehicles and the representation made by Ford, and Ford
acted with reckless disregard for the truth and denied Plaintiff and the other
Louisiana Class members information that is highly relevant to their purchasing
decision.
243. Ford further affirmatively misrepresented to Plaintiff in advertising
and other forms of communication, including standard and uniform material
provided with each car that the Coastdown Cheating Vehicles it was selling had no
010825-11/1171942 V1 - 97 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.106 Page 106 of 225
significant defects, had the advertised and certified fuel efficiency, and did not
reveal the existence of a mileage cheat device.
244. Ford knew these representations were false when made.
245. The Coastdown Cheating Vehicles purchased or leased by Plaintiff
and the other Class members were, in fact, defective, with reduced fuel efficiency
and a fuel efficiency cheat device.
246. Ford had a duty to disclose that the Coastdown Cheating Vehicles do
not provide the fuel efficiency that was advertised and certified, and their mileage
is far worse than a reasonable consumer would expect given the premium paid for
these vehicles and the representation made by Ford, because Plaintiff and the other
Louisiana Class members relied on Ford’s material representations or omissions of
fact that the Coastdown Cheating Vehicles they were purchasing were fuel
efficient and free from defects.
247. As alleged in this Complaint, at all relevant times, Ford has held out
the Coastdown Cheating Vehicles to be fuel efficient. Ford disclosed certain details
about the Coastdown Cheating Vehicles, but nonetheless, Ford intentionally failed
to disclose the important facts concerning the lack of fuel efficiency and existence
of a fuel efficiency cheat device, making other disclosures about the fuel efficiency
deceptive.
010825-11/1171942 V1 - 98 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.107 Page 107 of 225
248. The truth about the lack of fuel efficiency and Ford’s manipulations of
certifications and inclusion of a fuel efficiency defeat device was known only to
Ford; Plaintiff and the Louisiana Class members did not know of these facts and
Ford actively concealed these facts from Plaintiff and Louisiana Class members.
249. Plaintiff and Louisiana Class members reasonably relied upon Ford’s
deception. They had no way of knowing that Ford’s representations were false
and/or misleading. As consumers, Plaintiff and Louisiana Class members did not,
and could not, unravel Ford’s deception on their own. Rather, Ford intended to
deceive Plaintiff and Louisiana Class members by concealing the true facts about
the Coastdown Cheating Vehicles’ lack of fuel efficiency.
250. Ford also concealed and suppressed material facts concerning what is
evidently the true culture of Ford—one characterized by an emphasis on profits
and sales above compliance with federal and state clean air laws and emissions
regulations that are meant to protect the public and consumers. It also emphasized
profits and sales above the trust that Plaintiff and Louisiana Class members placed
in its representations.
251. Ford’s false representations were material to consumers, because they
concerned the fuel efficiency of the Coastdown Cheating Vehicles, and also
because the representations played a significant role in the value of the vehicles.
As Ford well knew, its customers, including Plaintiff and Louisiana Class
010825-11/1171942 V1 - 99 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.108 Page 108 of 225
members, highly valued that the vehicles they were purchasing or leasing were fuel
efficient, and they paid accordingly.
252. Ford had a duty to disclose that the Coastdown Cheating Vehicles do
not provide the fuel efficiency that was advertised and certified, and their mileage
is far worse than a reasonable consumer would expect given the premium paid for
these vehicles and the representation made by Ford, because details of the true
facts were known and/or accessible only to Ford, because Ford had exclusive
knowledge as to such facts, and because Ford knew these facts were not known to
or reasonably discoverable by Plaintiff or Louisiana Class members. Ford also had
a duty to disclose because it made general affirmative representations about the
qualities of its vehicles with respect to fuel efficiency, which were misleading,
deceptive, and incomplete without the disclosure of the additional facts set forth
above regarding the actual mileage of its vehicles. Having volunteered to provide
information to Plaintiff and Louisiana Class members, Ford had the duty to
disclose not just the partial truth, but the entire truth. These omitted and concealed
facts were material because they directly impact the value of the Coastdown
Cheating Vehicles purchased or leased by Plaintiff and Louisiana Class members.
Whether an automobile is fuel efficient and whether it accurately measures its own
gasoline consumption are material concerns to a consumer. Ford represented to
Plaintiff and Louisiana Class members that they were purchasing or leasing fuel
010825-11/1171942 V1 - 100 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.109 Page 109 of 225
efficient vehicles, when in fact the Coastdown Cheating Vehicles do not perform
as advertised and certified and do not accurately report their own fuel
consumption.
253. Ford actively concealed and/or suppressed these material facts, in
whole or in part, to pad and protect its profits and to avoid the perception that its
vehicles were not fuel efficient or low emissions, which perception would hurt the
brand’s image and cost Ford money, and it did so at the expense of Plaintiff and
Louisiana Class members.
254. Ford has still not made full and adequate disclosures and continues to
defraud Plaintiff and Louisiana Class members by concealing material information
regarding the fuel efficiency of its Coastdown Cheating Vehicles.
255. Plaintiff and Louisiana Class members were unaware of the omitted
material facts referenced herein, and they would not have acted as they did if they
had known of the concealed and/or suppressed facts, in that they would not have
purchased purportedly fuel efficient vehicles manufactured by Ford, and/or would
have taken other affirmative steps in light of the information concealed from them.
Plaintiff’s and Louisiana Class members’ actions were justified. Ford was in
exclusive control of the material facts, and such facts were not generally known to
the public, Plaintiff, or Louisiana Class members.
010825-11/1171942 V1 - 101 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.110 Page 110 of 225
256. Accordingly, Ford is liable to Plaintiff and Louisiana Class members
for damages in an amount to be proven at trial.
257. Ford’s acts were done wantonly, maliciously, oppressively,
deliberately, with intent to defraud, and in reckless disregard of Plaintiff’s and
Louisiana Class members’ rights and the representations that Ford made to them
were made in order to enrich Ford. Ford’s conduct warrants an assessment of
punitive damages in an amount sufficient to deter such conduct in the future, which
amount is to be determined according to proof.
COUNT 11
VIOLATION OF THE NEBRASKA CONSUMER PROTECTION ACT (NEB. REV. STAT. § 59-1601 et seq.) 258. Plaintiff Scott Whitehill hereby incorporates by reference the
allegations contained in the preceding paragraphs of this complaint.
259. This claim is brought by Plaintiff on behalf of Nebraska purchasers
who are members of the Class.
260. The Nebraska Consumer Protection Act (Nebraska CPA) prohibits
“unfair or deceptive acts or practices in the conduct of any trade or commerce.”
NEB. REV. STAT. § 59-1602.
261. Ford, Plaintiff, and Nebraska Class members are “person[s]” under
NEB. REV. STAT. § 59-1601(1).
010825-11/1171942 V1 - 102 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.111 Page 111 of 225
262. Ford’s actions as set forth herein occurred in the conduct of trade or
commerce as defined under NEB. REV. STAT. § 59-1601(2).
263. Because Ford’s conduct caused injury to Plaintiff’s property through
violations of the Nebraska CPA, Plaintiff seeks recovery of actual damages as well
as enhanced damages up to $1,000, an order enjoining Ford’s unfair or deceptive
acts and practices, costs of Court, reasonable attorneys’ fees, and any other just and
proper relief available under NEB. REV. STAT. § 59-1609.
COUNT 12
BREACH OF CONTRACT (BASED ON NEBRASKA LAW)
264. Plaintiff incorporates by reference all paragraphs as though fully set
forth herein.
265. This claim is brought by the Nebraska Plaintiff on behalf of Nebraska
purchasers who are members of the Class.
266. Ford’s misrepresentations and omissions alleged herein, including
Ford’s failure to disclose the existence of the Coastdown Cheating Vehicles’
onboard fuel efficiency cheat device and lower fuel economy than advertised and
certified, caused Plaintiffs and the other Nebraska Class members to make their
purchases or leases of the Coastdown Cheating Vehicles. Absent those
misrepresentations and omissions, Plaintiff and the other Nebraska Class members
would not have purchased or leased the Coastdown Cheating Vehicles, would not
010825-11/1171942 V1 - 103 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.112 Page 112 of 225
have purchased or leased the Coastdown Cheating Vehicles at the prices they paid,
and/or would have purchased or leased less expensive alternative vehicles that did
not contain the reduced mileage or fuel efficiency cheat device. Accordingly,
Plaintiff and the other Nebraska Class members overpaid for the Coastdown
Cheating Vehicles and did not receive the benefit of their bargain.
267. Each and every sale or lease of a Coastdown Cheating Vehicle
constitutes a contract between Ford and the purchaser or lessee. Ford breached
these contracts by selling or leasing to Plaintiff and the other Nebraska Class
members defective Coastdown Cheating Vehicles and by misrepresenting or
failing to disclose that the Coastdown Cheating Vehicles do not provide the fuel
efficiency that was advertised and certified, and their mileage is far worse than a
reasonable consumer would expect given the premium paid for these vehicles and
the representation made by Ford.
268. As a direct and proximate result of Ford’s breach of contract, Plaintiff
and the Class have been damaged in an amount to be proven at trial, which shall
include, but is not limited to, all compensatory damages, incidental and
consequential damages, and other damages allowed by law.
010825-11/1171942 V1 - 104 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.113 Page 113 of 225
COUNT 13
FRAUDULENT CONCEALMENT (BASED ON NEBRASKA LAW) 269. Plaintiff realleges and incorporates by reference all paragraphs as
though fully set forth herein.
270. This claim is brought by Plaintiff on behalf of Nebraska purchasers
who are members of the Class.
271. Ford concealed and suppressed material facts concerning the quality
of its vehicles and the fuel economy of the Coastdown Cheating Vehicles.
272. Because of the concealment and/or suppression of the facts, and the
inclusion of a mileage cheat device, Plaintiff and the Nebraska Class sustained
damage because they overpaid for their vehicles and own vehicles that diminished
in value as a result of Ford’s concealment, and suffered and continue to suffer
increased fuel costs over what was represented by Ford. Had they been aware of
the true facts, Plaintiff and Class members would not have purchased or leased the
Coastdown Cheating Vehicles or would have paid less.
COUNT 14
VIOLATION OF THE OHIO CONSUMER SALES PRACTICES ACT (OHIO REV. CODE ANN. § 1345.01 ET SEQ.)
273. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
010825-11/1171942 V1 - 105 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.114 Page 114 of 225
274. This claim is brought by Plaintiffs on behalf of Ohio purchasers who
are members of the Class.
275. Ohio Consumer Sales Practices Act (Ohio CSPA), OHIO REV. CODE
ANN. § 1345.02, broadly prohibits unfair or deceptive acts or practices in
connection with a consumer transaction. Specifically, and without limitation of the
broad prohibition, the Act prohibits (1) representing that Coastdown Cheating
Vehicles have characteristics, uses, benefits, and qualities which they do not have,
(2) representing that Coastdown Cheating Vehicles are of a particular standard,
quality, and grade when they are not, (3) advertising Coastdown Cheating Vehicles
with the intent not to sell them as advertised and certified, and (4) engaging in acts
or practices which are otherwise unfair, misleading, false, or deceptive to the
consumer. OHIO REV. CODE ANN. § 1345.02.
276. The Ohio Attorney General has made available for public inspection
prior state court decisions which have held that the acts and omissions of Ford in
this Complaint, including but not limited to the failure to honor both implied
warranties and express warranties, the making and distribution of false, deceptive,
and/or misleading representations, and the concealment and/or non-disclosure of a
dangerous defect, constitute deceptive sales practices in violation of the OCSPA.
These cases include, but are not limited to, the following:
010825-11/1171942 V1 - 106 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.115 Page 115 of 225
a. Mason v. Mercedes Benz USA, LLC (OPIF #10002382);
b. State ex rel. Betty D. Montgomery v. Volkswagen Motor Co. (OPIF #10002123);
c. State ex rel. Betty D. Montgomery v. Bridgestone/Firestone, Inc. (OPIF #10002025);
d. Bellinger v. Hewlett-Packard Co., No. 20744, 2002 Ohio App. LEXIS 1573 (Ohio Ct. App. Apr. 10, 2002) (OPIF #10002077);
e. Borror v. MarineMax of Ohio, No. OT-06-010, 2007 Ohio App. LEXIS 525 (Ohio Ct. App. Feb. 9, 2007) (OPIF #10002388);
f. State ex rel. Jim Petro v. Craftmatic Org., Inc. (OPIF #10002347);
g. Mark J. Craw Volkswagen, et al. v. Joseph Airport Toyota, Inc. (OPIF #10001586);
h. State ex rel. William J. Brown v. Harold Lyons, et al. (OPIF #10000304);
i. Brinkman v. Mazda Motor of Am., Inc. (OPIF #10001427);
j. Khouri v. Don Lewis (OPIF #100001995);
k. Mosley v. Performance Mitsubishi aka Automanage (OPIF #10001326);
l. Walls v. Harry Williams dba Butch’s Auto Sales (OPIF #10001524); and
m. Brown v. Spears (OPIF #10000403).
277. Ford is a “supplier” as that term is defined in OHIO REV. CODE ANN.
§ 1345.01(C).
278. Plaintiffs and Ohio Class members are “consumers” as that term is
defined in OHIO REV. CODE ANN. § 1345.01(D), and their purchase or lease of one
010825-11/1171942 V1 - 107 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.116 Page 116 of 225
or more Coastdown Cheating Vehicles is a “consumer transaction” within the
meaning of OHIO REV. CODE ANN. § 1345.01(A).
279. As a result of the foregoing wrongful conduct, Plaintiffs have been
damaged in an amount to be proven at trial and seek all just and proper remedies,
including but not limited to actual and statutory damages, an order enjoining
Ford’s deceptive and unfair conduct, treble damages, court costs, and reasonable
attorneys’ fees, pursuant to OHIO REV. CODE ANN. § 1345.09 et seq.
COUNT 15
BREACH OF CONTRACT (BASED ON OHIO LAW)
280. Plaintiff incorporates by reference all paragraphs as though fully set
forth herein.
281. This claim is brought by the Ohio Plaintiff on behalf of Ohio
purchasers who are members of the Class.
282. Ford’s misrepresentations and omissions alleged herein, including
Ford’s failure to disclose the existence of the Coastdown Cheating Vehicles’
onboard fuel efficiency cheat device and lower fuel economy than advertised and
certified, caused Plaintiff and the other Ohio members to make their purchases or
leases of the Coastdown Cheating Vehicles. Absent those misrepresentations and
omissions, Plaintiff and the other Ohio Class members would not have purchased
or leased the Coastdown Cheating Vehicles, would not have purchased or leased
010825-11/1171942 V1 - 108 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.117 Page 117 of 225
the Coastdown Cheating Vehicles at the prices they paid, and/or would have
purchased or leased less expensive alternative vehicles that did not contain the
reduced mileage or fuel efficiency cheat device. Accordingly, Plaintiff and the
other Ohio Class members overpaid for the Coastdown Cheating Vehicles and did
not receive the benefit of their bargain.
283. Each and every sale or lease of a Coastdown Cheating Vehicle
constitutes a contract between Ford and the purchaser or lessee. Ford breached
these contracts by selling or leasing to Plaintiff and the other Ohio Class members
defective Coastdown Cheating Vehicles and by misrepresenting or failing to
disclose that the Coastdown Cheating Vehicles do not provide the fuel efficiency
that was advertised and certified, and their mileage is far worse than a reasonable
consumer would expect given the premium paid for these vehicles and the
representation made by Ford.
284. As a direct and proximate result of Ford’s breach of contract, Plaintiff
and the Class have been damaged in an amount to be proven at trial, which shall
include, but is not limited to, all compensatory damages, incidental and
consequential damages, and other damages allowed by law.
010825-11/1171942 V1 - 109 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.118 Page 118 of 225
COUNT 16
FRAUDULENT CONCEALMENT (BASED ON OHIO LAW) 285. Plaintiff incorporates by reference all paragraphs as though fully set
forth herein.
286. This claim is brought by the Ohio Plaintiff on behalf of Ohio
purchasers who are members of the Class.
287. Ford intentionally concealed the fact that the Coastdown Cheating
Vehicles do not provide the fuel efficiency that was advertised and certified, and
their mileage is far worse than a reasonable consumer would expect given the
premium paid for these vehicles and the representation made by Ford, and Ford
acted with reckless disregard for the truth and denied Plaintiff and the other Ohio
Class members information that is highly relevant to their purchasing decision.
288. Ford further affirmatively misrepresented to Plaintiff in advertising
and other forms of communication, including standard and uniform material
provided with each car that the Coastdown Cheating Vehicles it was selling had no
significant defects, had the advertised and certified fuel efficiency, and did not
reveal the existence of a mileage cheat device.
289. Ford knew these representations were false when made.
010825-11/1171942 V1 - 110 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.119 Page 119 of 225
290. The Coastdown Cheating Vehicles purchased or leased by Plaintiff
and the other Class members were, in fact, defective, with reduced fuel efficiency
and a fuel efficiency cheat device.
291. Ford had a duty to disclose that the Coastdown Cheating Vehicles do
not provide the fuel efficiency that was advertised and certified, and their mileage
is far worse than a reasonable consumer would expect given the premium paid for
these vehicles and the representation made by Ford, because Plaintiff and the other
Ohio Class members relied on Ford’s material representations or omissions of fact
that the Coastdown Cheating Vehicles they were purchasing were fuel efficient and
free from defects.
292. As alleged in this Complaint, at all relevant times, Ford has held out
the Coastdown Cheating Vehicles to be fuel efficient. Ford disclosed certain details
about the Coastdown Cheating Vehicles, but nonetheless, Ford intentionally failed
to disclose the important facts concerning the lack of fuel efficiency and existence
of a fuel efficiency cheat device, making other disclosures about the fuel efficiency
deceptive.
293. The truth about the lack of fuel efficiency and Ford’s manipulations of
certifications and inclusion of a fuel efficiency defeat device was known only to
Ford; Plaintiff and the Ohio Class members did not know of these facts and Ford
actively concealed these facts from Plaintiff and Ohio Class members.
010825-11/1171942 V1 - 111 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.120 Page 120 of 225
294. Plaintiff and Ohio Class members reasonably relied upon Ford’s
deception. They had no way of knowing that Ford’s representations were false
and/or misleading. As consumers, Plaintiff and Ohio Class members did not, and
could not, unravel Ford’s deception on their own. Rather, Ford intended to deceive
Plaintiff and Ohio Class members by concealing the true facts about the
Coastdown Cheating Vehicles’ lack of fuel efficiency.
295. Ford also concealed and suppressed material facts concerning what is
evidently the true culture of Ford—one characterized by an emphasis on profits
and sales above compliance with federal and state clean air laws and emissions
regulations that are meant to protect the public and consumers. It also emphasized
profits and sales above the trust that Plaintiff and Ohio Class members placed in its
representations.
296. Ford’s false representations were material to consumers, because they
concerned the fuel efficiency of the Coastdown Cheating Vehicles, and also
because the representations played a significant role in the value of the vehicles.
As Ford well knew, its customers, including Plaintiff and Ohio Class members,
highly valued that the vehicles they were purchasing or leasing were fuel efficient,
and they paid accordingly.
297. Ford had a duty to disclose that the Coastdown Cheating Vehicles do
not provide the fuel efficiency that was advertised and certified, and their mileage
010825-11/1171942 V1 - 112 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.121 Page 121 of 225
is far worse than a reasonable consumer would expect given the premium paid for
these vehicles and the representation made by Ford, because details of the true
facts were known and/or accessible only to Ford, because Ford had exclusive
knowledge as to such facts, and because Ford knew these facts were not known to
or reasonably discoverable by Plaintiff or Ohio Class members. Ford also had a
duty to disclose because it made general affirmative representations about the
qualities of its vehicles with respect to fuel efficiency, which were misleading,
deceptive, and incomplete without the disclosure of the additional facts set forth
above regarding the actual mileage of its vehicles. Having volunteered to provide
information to Plaintiff and Ohio Class members, Ford had the duty to disclose not
just the partial truth, but the entire truth. These omitted and concealed facts were
material because they directly impact the value of the Coastdown Cheating
Vehicles purchased or leased by Plaintiff and Ohio Class members. Whether an
automobile is fuel efficient and whether it accurately measures its own gasoline
consumption are material concerns to a consumer. Ford represented to Plaintiff and
Ohio Class members that they were purchasing or leasing fuel efficient vehicles,
when in fact the Coastdown Cheating Vehicles do not perform as advertised and
certified and do not accurately report their own fuel consumption.
298. Ford actively concealed and/or suppressed these material facts, in
whole or in part, to pad and protect its profits and to avoid the perception that its
010825-11/1171942 V1 - 113 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.122 Page 122 of 225
vehicles were not fuel efficient or low emissions, which perception would hurt the
brand’s image and cost Ford money, and it did so at the expense of Plaintiff and
Ohio Class members.
299. Ford has still not made full and adequate disclosures and continues to
defraud Plaintiff and Ohio Class members by concealing material information
regarding the fuel efficiency of its Coastdown Cheating Vehicles.
300. Plaintiff and Ohio Class members were unaware of the omitted
material facts referenced herein, and they would not have acted as they did if they
had known of the concealed and/or suppressed facts, in that they would not have
purchased purportedly fuel efficient vehicles manufactured by Ford, and/or would
have taken other affirmative steps in light of the information concealed from them.
Plaintiff’s and Ohio Class members’ actions were justified. Ford was in exclusive
control of the material facts, and such facts were not generally known to the public,
Plaintiff, or Ohio Class members.
301. Accordingly, Ford is liable to Plaintiff and Ohio Class members for
damages in an amount to be proven at trial.
302. Ford’s acts were done wantonly, maliciously, oppressively,
deliberately, with intent to defraud, and in reckless disregard of Plaintiff’s and
Ohio Class members’ rights and the representations that Ford made to them were
made in order to enrich Ford. Ford’s conduct warrants an assessment of punitive
010825-11/1171942 V1 - 114 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.123 Page 123 of 225
damages in an amount sufficient to deter such conduct in the future, which amount
is to be determined according to proof.
COUNT 17
VIOLATION OF THE SOUTH CAROLINA UNFAIR TRADE PRACTICES ACT (S.C. CODE ANN. § 39-5-10 et seq.)
303. Plaintiff Matthew Brownlee hereby incorporates by reference the
allegations contained in the preceding paragraphs of this complaint.
304. This claim is brought by Plaintiff on behalf of South Carolina
purchasers who are members of the Class.
305. The South Carolina Unfair Trade Practices Act (South Carolina
UTPA) prohibits “unfair or deceptive acts or practices in the conduct of any trade
or commerce.” S.C. CODE ANN. § 39-5-20(a).
306. Ford is a “person” under S.C. CODE ANN. § 39-5-10.
307. Pursuant to S.C. CODE ANN. § 39-5-140(a), Plaintiff seeks monetary
relief to recover their economic losses. Because Ford’s actions were willful and
knowing, Plaintiffs’ damages should be trebled.
308. Plaintiff further alleges that Ford’s malicious and deliberate conduct
warrants an assessment of punitive damages because it carried out despicable
conduct with willful and conscious disregard of the rights of others. Ford’s
010825-11/1171942 V1 - 115 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.124 Page 124 of 225
unlawful conduct constitutes malice, oppression, and fraud warranting punitive
damages.
309. Plaintiff further seeks an order enjoining each Ford’s unfair or
deceptive acts or practices.
COUNT 18
BREACH OF CONTRACT (BASED ON SOUTH CAROLINA LAW)
310. Plaintiff incorporates by reference all paragraphs as though fully set
forth herein.
311. This claim is brought by the South Carolina Plaintiff on behalf of
South Carolina purchasers who are members of the Class.
312. Ford’s misrepresentations and omissions alleged herein, including
Ford’s failure to disclose the existence of the Coastdown Cheating Vehicles’
onboard fuel efficiency cheat device and lower fuel economy than advertised and
certified, caused Plaintiff and the other South Carolina Class members to make
their purchases or leases of the Coastdown Cheating Vehicles. Absent those
misrepresentations and omissions, Plaintiff and the other South Carolina Class
members would not have purchased or leased the Coastdown Cheating Vehicles,
would not have purchased or leased the Coastdown Cheating Vehicles at the prices
they paid, and/or would have purchased or leased less expensive alternative
vehicles that did not contain the reduced mileage or fuel efficiency cheat device.
010825-11/1171942 V1 - 116 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.125 Page 125 of 225
Accordingly, Plaintiff and the other South Carolina Class members overpaid for
the Coastdown Cheating Vehicles and did not receive the benefit of their bargain.
313. Each and every sale or lease of a Coastdown Cheating Vehicle
constitutes a contract between Ford and the purchaser or lessee. Ford breached
these contracts by selling or leasing to Plaintiff and the other South Carolina Class
members defective Coastdown Cheating Vehicles and by misrepresenting or
failing to disclose that the Coastdown Cheating Vehicles do not provide the fuel
efficiency that was advertised and certified, and their mileage is far worse than a
reasonable consumer would expect given the premium paid for these vehicles and
the representation made by Ford.
314. As a direct and proximate result of Ford’s breach of contract, Plaintiff
and the Class have been damaged in an amount to be proven at trial, which shall
include, but is not limited to, all compensatory damages, incidental and
consequential damages, and other damages allowed by law.
COUNT 19
FRAUDULENT CONCEALMENT (BASED ON SOUTH CAROLINA LAW)
315. Plaintiff incorporates by reference all paragraphs as though fully set
forth herein.
316. This claim is brought by the South Carolina Plaintiff on behalf of
South Carolina purchasers who are members of the Class.
010825-11/1171942 V1 - 117 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.126 Page 126 of 225
317. Ford intentionally concealed the fact that the Coastdown Cheating
Vehicles do not provide the fuel efficiency that was advertised and certified, and
their mileage is far worse than a reasonable consumer would expect given the
premium paid for these vehicles and the representation made by Ford, and Ford
acted with reckless disregard for the truth and denied Plaintiff and the other South
Carolina Class members information that is highly relevant to their purchasing
decision.
318. Ford further affirmatively misrepresented to Plaintiff in advertising
and other forms of communication, including standard and uniform material
provided with each car that the Coastdown Cheating Vehicles it was selling had no
significant defects, had the advertised and certified fuel efficiency, and did not
reveal the existence of a mileage cheat device.
319. Ford knew these representations were false when made.
320. The Coastdown Cheating Vehicles purchased or leased by Plaintiff
and the other Class members were, in fact, defective, with reduced fuel efficiency
and a fuel efficiency cheat device.
321. Ford had a duty to disclose that the Coastdown Cheating Vehicles do
not provide the fuel efficiency that was advertised and certified, and their mileage
is far worse than a reasonable consumer would expect given the premium paid for
these vehicles and the representation made by Ford, because Plaintiff and the other
010825-11/1171942 V1 - 118 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.127 Page 127 of 225
South Carolina Class members relied on Ford’s material representations or
omissions of fact that the Coastdown Cheating Vehicles they were purchasing were
fuel efficient and free from defects.
322. As alleged in this Complaint, at all relevant times, Ford has held out
the Coastdown Cheating Vehicles to be fuel efficient. Ford disclosed certain details
about the Coastdown Cheating Vehicles, but nonetheless, Ford intentionally failed
to disclose the important facts concerning the lack of fuel efficiency and existence
of a fuel efficiency cheat device, making other disclosures about the fuel efficiency
deceptive.
323. The truth about the lack of fuel efficiency and Ford’s manipulations of
certifications and inclusion of a fuel efficiency defeat device was known only to
Ford; Plaintiff and the South Carolina Class members did not know of these facts
and Ford actively concealed these facts from Plaintiff and South Carolina Class
members.
324. Plaintiff and South Carolina Class members reasonably relied upon
Ford’s deception. They had no way of knowing that Ford’s representations were
false and/or misleading. As consumers, Plaintiff and South Carolina Class
members did not, and could not, unravel Ford’s deception on their own. Rather,
Ford intended to deceive Plaintiff and South Carolina Class members by
010825-11/1171942 V1 - 119 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.128 Page 128 of 225
concealing the true facts about the Coastdown Cheating Vehicles’ lack of fuel
efficiency.
325. Ford also concealed and suppressed material facts concerning what is
evidently the true culture of Ford—one characterized by an emphasis on profits
and sales above compliance with federal and state clean air laws and emissions
regulations that are meant to protect the public and consumers. It also emphasized
profits and sales above the trust that Plaintiff and South Carolina Class members
placed in its representations.
326. Ford’s false representations were material to consumers, because they
concerned the fuel efficiency of the Coastdown Cheating Vehicles, and also
because the representations played a significant role in the value of the vehicles.
As Ford well knew, its customers, including Plaintiff and South Carolina Class
members, highly valued that the vehicles they were purchasing or leasing were fuel
efficient, and they paid accordingly.
327. Ford had a duty to disclose that the Coastdown Cheating Vehicles do
not provide the fuel efficiency that was advertised and certified, and their mileage
is far worse than a reasonable consumer would expect given the premium paid for
these vehicles and the representation made by Ford, because details of the true
facts were known and/or accessible only to Ford, because Ford had exclusive
knowledge as to such facts, and because Ford knew these facts were not known to
010825-11/1171942 V1 - 120 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.129 Page 129 of 225
or reasonably discoverable by Plaintiff or South Carolina Class members. Ford
also had a duty to disclose because it made general affirmative representations
about the qualities of its vehicles with respect to fuel efficiency, which were
misleading, deceptive, and incomplete without the disclosure of the additional facts
set forth above regarding the actual mileage of its vehicles. Having volunteered to
provide information to Plaintiff and South Carolina Class members, Ford had the
duty to disclose not just the partial truth, but the entire truth. These omitted and
concealed facts were material because they directly impact the value of the
Coastdown Cheating Vehicles purchased or leased by Plaintiff and South Carolina
Class members. Whether an automobile is fuel efficient and whether it accurately
measures its own gasoline consumption are material concerns to a consumer. Ford
represented to Plaintiff and South Carolina Class members that they were
purchasing or leasing fuel efficient vehicles, when in fact the Coastdown Cheating
Vehicles do not perform as advertised and certified and do not accurately report
their own fuel consumption.
328. Ford actively concealed and/or suppressed these material facts, in
whole or in part, to pad and protect its profits and to avoid the perception that its
vehicles were not fuel efficient or low emissions, which perception would hurt the
brand’s image and cost Ford money, and it did so at the expense of Plaintiff and
South Carolina Class members.
010825-11/1171942 V1 - 121 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.130 Page 130 of 225
329. Ford has still not made full and adequate disclosures and continues to
defraud Plaintiff and South Carolina Class members by concealing material
information regarding the fuel efficiency of its Coastdown Cheating Vehicles.
330. Plaintiff and South Carolina Class members were unaware of the
omitted material facts referenced herein, and they would not have acted as they did
if they had known of the concealed and/or suppressed facts, in that they would not
have purchased purportedly fuel efficient vehicles manufactured by Ford, and/or
would have taken other affirmative steps in light of the information concealed from
them. Plaintiff’s and South Carolina Class members’ actions were justified. Ford
was in exclusive control of the material facts, and such facts were not generally
known to the public, Plaintiff, or South Carolina Class members.
331. Accordingly, Ford is liable to Plaintiff and South Carolina Class
members for damages in an amount to be proven at trial.
332. Ford’s acts were done wantonly, maliciously, oppressively,
deliberately, with intent to defraud, and in reckless disregard of Plaintiff’s and
South Carolina Class members’ rights and the representations that Ford made to
them were made in order to enrich Ford. Ford’s conduct warrants an assessment of
punitive damages in an amount sufficient to deter such conduct in the future, which
amount is to be determined according to proof.
010825-11/1171942 V1 - 122 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.131 Page 131 of 225
COUNT 20
VIOLATION OF THE SOUTH DAKOTA DECEPTIVE TRADE PRACTICES AND CONSUMER PROTECTION LAW (S.D. CODIFIED LAWS § 37-24-6)
333. Plaintiff Robert Raney hereby incorporates by reference the
allegations contained in the preceding paragraphs of this complaint.
334. This claim is brought by Plaintiff on behalf of South Dakota
purchasers who are members of the Class.
335. The South Dakota Deceptive Trade Practices and Consumer
Protection Law (South Dakota CPL) prohibits deceptive acts or practices, which
include “[k]nowingly act[ing], us[ing], or employ[ing] any deceptive act or
practice, fraud, false pretense, false promises, or misrepresentation or to conceal,
suppress, or omit any material fact in connection with the sale or advertisement of
any merchandise, regardless of whether any person has in fact been misled,
deceived, or damaged thereby.” S.D. CODIFIED LAWS §§ 37-24-6(1), 37-24-31.
336. Under S.D. CODIFIED LAWS § 37-24-31, Plaintiffs are entitled to a
recovery of their actual damages suffered as a result of Ford’s acts and practices.
COUNT 21
BREACH OF CONTRACT (BASED ON SOUTH DAKOTA LAW) 337. Plaintiff incorporates by reference all paragraphs as though fully set
forth herein.
010825-11/1171942 V1 - 123 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.132 Page 132 of 225
338. This claim is brought by the South Dakota Plaintiff on behalf of South
Dakota purchasers who are members of the Class.
339. Ford’s misrepresentations and omissions alleged herein, including
Ford’s failure to disclose the existence of the Coastdown Cheating Vehicles’
onboard fuel efficiency cheat device and lower fuel economy than advertised and
certified, caused Plaintiff and the other South Dakota Class members to make their
purchases or leases of the Coastdown Cheating Vehicles. Absent those
misrepresentations and omissions, Plaintiff and the other South Dakota Class
members would not have purchased or leased the Coastdown Cheating Vehicles,
would not have purchased or leased the Coastdown Cheating Vehicles at the prices
they paid, and/or would have purchased or leased less expensive alternative
vehicles that did not contain the reduced mileage or fuel efficiency cheat device.
Accordingly, Plaintiff and the other South Dakota Class members overpaid for the
Coastdown Cheating Vehicles and did not receive the benefit of their bargain.
340. Each and every sale or lease of a Coastdown Cheating Vehicle
constitutes a contract between Ford and the purchaser or lessee. Ford breached
these contracts by selling or leasing to Plaintiff and the other South Dakota Class
members defective Coastdown Cheating Vehicles and by misrepresenting or
failing to disclose that the Coastdown Cheating Vehicles do not provide the fuel
efficiency that was advertised and certified, and their mileage is far worse than a
010825-11/1171942 V1 - 124 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.133 Page 133 of 225
reasonable consumer would expect given the premium paid for these vehicles and
the representation made by Ford.
341. As a direct and proximate result of Ford’s breach of contract, Plaintiff
and the Class have been damaged in an amount to be proven at trial, which shall
include, but is not limited to, all compensatory damages, incidental and
consequential damages, and other damages allowed by law.
COUNT 22
FRAUDULENT CONCEALMENT (BASED ON SOUTH DAKOTA LAW) 342. Plaintiff incorporates by reference all paragraphs as though fully set
forth herein.
343. This claim is brought by the South Dakota Plaintiff on behalf of South
Dakota purchasers who are members of the Class.
344. Ford intentionally concealed the fact that the Coastdown Cheating
Vehicles do not provide the fuel efficiency that was advertised and certified, and
their mileage is far worse than a reasonable consumer would expect given the
premium paid for these vehicles and the representation made by Ford, and Ford
acted with reckless disregard for the truth and denied Plaintiff and the other South
Dakota Class members information that is highly relevant to their purchasing
decision.
010825-11/1171942 V1 - 125 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.134 Page 134 of 225
345. Ford further affirmatively misrepresented to Plaintiff in advertising
and other forms of communication, including standard and uniform material
provided with each car that the Coastdown Cheating Vehicles it was selling had no
significant defects, had the advertised and certified fuel efficiency, and did not
reveal the existence of a mileage cheat device.
346. Ford knew these representations were false when made.
347. The Coastdown Cheating Vehicles purchased or leased by Plaintiff
and the other Class members were, in fact, defective, with reduced fuel efficiency
and a fuel efficiency cheat device.
348. Ford had a duty to disclose that the Coastdown Cheating Vehicles do
not provide the fuel efficiency that was advertised and certified, and their mileage
is far worse than a reasonable consumer would expect given the premium paid for
these vehicles and the representation made by Ford, because Plaintiff and the other
South Dakota Class members relied on Ford’s material representations or
omissions of fact that the Coastdown Cheating Vehicles they were purchasing were
fuel efficient and free from defects.
349. As alleged in this Complaint, at all relevant times, Ford has held out
the Coastdown Cheating Vehicles to be fuel efficient. Ford disclosed certain details
about the Coastdown Cheating Vehicles, but nonetheless, Ford intentionally failed
to disclose the important facts concerning the lack of fuel efficiency and existence
010825-11/1171942 V1 - 126 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.135 Page 135 of 225
of a fuel efficiency cheat device, making other disclosures about the fuel efficiency
deceptive.
350. The truth about the lack of fuel efficiency and Ford’s manipulations of
certifications and inclusion of a fuel efficiency defeat device was known only to
Ford; Plaintiff and the South Dakota Class members did not know of these facts
and Ford actively concealed these facts from Plaintiff and South Dakota Class
members.
351. Plaintiff and South Dakota Class members reasonably relied upon
Ford’s deception. They had no way of knowing that Ford’s representations were
false and/or misleading. As consumers, Plaintiff and South Dakota Class members
did not, and could not, unravel Ford’s deception on their own. Rather, Ford
intended to deceive Plaintiff and South Dakota Class members by concealing the
true facts about the Coastdown Cheating Vehicles’ lack of fuel efficiency.
352. Ford also concealed and suppressed material facts concerning what is
evidently the true culture of Ford—one characterized by an emphasis on profits
and sales above compliance with federal and state clean air laws and emissions
regulations that are meant to protect the public and consumers. It also emphasized
profits and sales above the trust that Plaintiff and South Dakota Class members
placed in its representations.
010825-11/1171942 V1 - 127 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.136 Page 136 of 225
353. Ford’s false representations were material to consumers, because they
concerned the fuel efficiency of the Coastdown Cheating Vehicles, and also
because the representations played a significant role in the value of the vehicles.
As Ford well knew, its customers, including Plaintiff and South Dakota Class
members, highly valued that the vehicles they were purchasing or leasing were fuel
efficient, and they paid accordingly.
354. Ford had a duty to disclose that the Coastdown Cheating Vehicles do
not provide the fuel efficiency that was advertised and certified, and their mileage
is far worse than a reasonable consumer would expect given the premium paid for
these vehicles and the representation made by Ford, because details of the true
facts were known and/or accessible only to Ford, because Ford had exclusive
knowledge as to such facts, and because Ford knew these facts were not known to
or reasonably discoverable by Plaintiff or South Dakota Class members. Ford also
had a duty to disclose because it made general affirmative representations about
the qualities of its vehicles with respect to fuel efficiency, which were misleading,
deceptive, and incomplete without the disclosure of the additional facts set forth
above regarding the actual mileage of its vehicles. Having volunteered to provide
information to Plaintiff and South Dakota Class members, Ford had the duty to
disclose not just the partial truth, but the entire truth. These omitted and concealed
facts were material because they directly impact the value of the Coastdown
010825-11/1171942 V1 - 128 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.137 Page 137 of 225
Cheating Vehicles purchased or leased by Plaintiff and South Dakota Class
members. Whether an automobile is fuel efficient and whether it accurately
measures its own gasoline consumption are material concerns to a consumer. Ford
represented to Plaintiff and South Dakota Class members that they were
purchasing or leasing fuel efficient vehicles, when in fact the Coastdown Cheating
Vehicles do not perform as advertised and certified and do not accurately report
their own fuel consumption.
355. Ford actively concealed and/or suppressed these material facts, in
whole or in part, to pad and protect its profits and to avoid the perception that its
vehicles were not fuel efficient or low emissions, which perception would hurt the
brand’s image and cost Ford money, and it did so at the expense of Plaintiff and
South Dakota Class members.
356. Ford has still not made full and adequate disclosures and continues to
defraud Plaintiff and South Dakota Class members by concealing material
information regarding the fuel efficiency of its Coastdown Cheating Vehicles.
357. Plaintiff and South Dakota Class members were unaware of the
omitted material facts referenced herein, and they would not have acted as they did
if they had known of the concealed and/or suppressed facts, in that they would not
have purchased purportedly fuel efficient vehicles manufactured by Ford, and/or
would have taken other affirmative steps in light of the information concealed from
010825-11/1171942 V1 - 129 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.138 Page 138 of 225
them. Plaintiff’s and South Dakota Class members’ actions were justified. Ford
was in exclusive control of the material facts, and such facts were not generally
known to the public, Plaintiff, or South Dakota Class members.
358. Accordingly, Ford is liable to Plaintiff and South Dakota Class
members for damages in an amount to be proven at trial.
359. Ford’s acts were done wantonly, maliciously, oppressively,
deliberately, with intent to defraud, and in reckless disregard of Plaintiff’s and
South Dakota Class members’ rights and the representations that Ford made to
them were made in order to enrich Ford. Ford’s conduct warrants an assessment of
punitive damages in an amount sufficient to deter such conduct in the future, which
amount is to be determined according to proof.
COUNT 23
VIOLATION OF THE WISCONSIN DECEPTIVE TRADE PRACTICES ACT (WIS. STAT. § 110.18) 360. Plaintiff Steven Leszczynski hereby incorporates by reference the
allegations contained in the preceding paragraphs of this complaint.
361. This claim is brought by Plaintiff on behalf of Wisconsin purchasers
who are members of the Class.
010825-11/1171942 V1 - 130 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.139 Page 139 of 225
362. The Wisconsin Deceptive Trade Practices Act (Wisconsin DTPA)
prohibits a “representation or statement of fact which is untrue, deceptive or
misleading.” WIS. STAT. § 100.18(1).
363. Ford is a “person, firm, corporation or association” within the
meaning of WIS. STAT. § 100.18(1).
364. Plaintiff and Wisconsin Class members are members of “the public”
within the meaning of WIS. STAT. § 100.18(1). Plaintiff purchased or leased one or
more Coastdown Cheating Vehicles.
365. Plaintiff is entitled to damages and other relief provided for under
WIS. STAT. § 100.18(11)(b)(2). Because Ford’s conduct was committed knowingly
and/or intentionally, Plaintiff is entitled to treble damages.
366. Plaintiff also seeks court costs and attorneys’ fees under WIS. STAT.
§ 110.18(11)(b)(2).
COUNT 24
BREACH OF CONTRACT (BASED ON WISCONSIN LAW)
367. Plaintiff incorporates by reference all paragraphs as though fully set
forth herein.
368. This claim is brought by the Wisconsin Plaintiff on behalf of
Wisconsin purchasers who are members of the Class.
010825-11/1171942 V1 - 131 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.140 Page 140 of 225
369. Ford’s misrepresentations and omissions alleged herein, including
Ford’s failure to disclose the existence of the Coastdown Cheating Vehicles’
onboard fuel efficiency cheat device and lower fuel economy than advertised and
certified, caused Plaintiff and the other Wisconsin Class members to make their
purchases or leases of the Coastdown Cheating Vehicles. Absent those
misrepresentations and omissions, Plaintiff and the other Wisconsin Class
members would not have purchased or leased the Coastdown Cheating Vehicles,
would not have purchased or leased the Coastdown Cheating Vehicles at the prices
they paid, and/or would have purchased or leased less expensive alternative
vehicles that did not contain the reduced mileage or fuel efficiency cheat device.
Accordingly, Plaintiff and the other Wisconsin Class members overpaid for the
Coastdown Cheating Vehicles and did not receive the benefit of their bargain.
370. Each and every sale or lease of a Coastdown Cheating Vehicle
constitutes a contract between Ford and the purchaser or lessee. Ford breached
these contracts by selling or leasing to Plaintiff and the other Wisconsin Class
members defective Coastdown Cheating Vehicles and by misrepresenting or
failing to disclose that the Coastdown Cheating Vehicles do not provide the fuel
efficiency that was advertised and certified, and their mileage is far worse than a
reasonable consumer would expect given the premium paid for these vehicles and
the representation made by Ford.
010825-11/1171942 V1 - 132 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.141 Page 141 of 225
371. As a direct and proximate result of Ford’s breach of contract, Plaintiff
and the Class have been damaged in an amount to be proven at trial, which shall
include, but is not limited to, all compensatory damages, incidental and
consequential damages, and other damages allowed by law.
COUNT 25
FRAUDULENT CONCEALMENT (BASED ON WISCONSIN LAW)
372. Plaintiff incorporates by reference all paragraphs as though fully set
forth herein.
373. This claim is brought by the Wisconsin Plaintiff on behalf of
Wisconsin purchasers who are members of the Class.
374. Ford intentionally concealed the fact that the Coastdown Cheating
Vehicles do not provide the fuel efficiency that was advertised and certified, and
their mileage is far worse than a reasonable consumer would expect given the
premium paid for these vehicles and the representation made by Ford, and Ford
acted with reckless disregard for the truth and denied Plaintiff and the other
Wisconsin Class members information that is highly relevant to their purchasing
decision.
375. Ford further affirmatively misrepresented to Plaintiff in advertising
and other forms of communication, including standard and uniform material
provided with each car that the Coastdown Cheating Vehicles it was selling had no
010825-11/1171942 V1 - 133 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.142 Page 142 of 225
significant defects, had the advertised and certified fuel efficiency, and did not
reveal the existence of a mileage cheat device.
376. Ford knew these representations were false when made.
377. The Coastdown Cheating Vehicles purchased or leased by Plaintiff
and the other Class members were, in fact, defective, with reduced fuel efficiency
and a fuel efficiency cheat device.
378. Ford had a duty to disclose that the Coastdown Cheating Vehicles do
not provide the fuel efficiency that was advertised and certified, and their mileage
is far worse than a reasonable consumer would expect given the premium paid for
these vehicles and the representation made by Ford, because Plaintiff and the other
Wisconsin Class members relied on Ford’s material representations or omissions
of fact that the Coastdown Cheating Vehicles they were purchasing were fuel
efficient and free from defects.
379. As alleged in this Complaint, at all relevant times, Ford has held out
the Coastdown Cheating Vehicles to be fuel efficient. Ford disclosed certain details
about the Coastdown Cheating Vehicles, but nonetheless, Ford intentionally failed
to disclose the important facts concerning the lack of fuel efficiency and existence
of a fuel efficiency cheat device, making other disclosures about the fuel efficiency
deceptive.
010825-11/1171942 V1 - 134 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.143 Page 143 of 225
380. The truth about the lack of fuel efficiency and Ford’s manipulations of
certifications and inclusion of a fuel efficiency defeat device was known only to
Ford; Plaintiff and the Wisconsin Class members did not know of these facts and
Ford actively concealed these facts from Plaintiff and Wisconsin Class members.
381. Plaintiff and Wisconsin Class members reasonably relied upon Ford’s
deception. They had no way of knowing that Ford’s representations were false
and/or misleading. As consumers, Plaintiff and Wisconsin Class members did not,
and could not, unravel Ford’s deception on their own. Rather, Ford intended to
deceive Plaintiff and Wisconsin Class members by concealing the true facts about
the Coastdown Cheating Vehicles’ lack of fuel efficiency.
382. Ford also concealed and suppressed material facts concerning what is
evidently the true culture of Ford—one characterized by an emphasis on profits
and sales above compliance with federal and state clean air laws and emissions
regulations that are meant to protect the public and consumers. It also emphasized
profits and sales above the trust that Plaintiff and Wisconsin Class members placed
in its representations.
383. Ford’s false representations were material to consumers, because they
concerned the fuel efficiency of the Coastdown Cheating Vehicles, and also
because the representations played a significant role in the value of the vehicles.
As Ford well knew, its customers, including Plaintiff and Wisconsin Class
010825-11/1171942 V1 - 135 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.144 Page 144 of 225
members, highly valued that the vehicles they were purchasing or leasing were fuel
efficient, and they paid accordingly.
384. Ford had a duty to disclose that the Coastdown Cheating Vehicles do
not provide the fuel efficiency that was advertised and certified, and their mileage
is far worse than a reasonable consumer would expect given the premium paid for
these vehicles and the representation made by Ford, because details of the true
facts were known and/or accessible only to Ford, because Ford had exclusive
knowledge as to such facts, and because Ford knew these facts were not known to
or reasonably discoverable by Plaintiff or Wisconsin Class members. Ford also had
a duty to disclose because it made general affirmative representations about the
qualities of its vehicles with respect to fuel efficiency, which were misleading,
deceptive, and incomplete without the disclosure of the additional facts set forth
above regarding the actual mileage of its vehicles. Having volunteered to provide
information to Plaintiff and Wisconsin Class members, Ford had the duty to
disclose not just the partial truth, but the entire truth. These omitted and concealed
facts were material because they directly impact the value of the Coastdown
Cheating Vehicles purchased or leased by Plaintiff and Wisconsin Class members.
Whether an automobile is fuel efficient and whether it accurately measures its own
gasoline consumption are material concerns to a consumer. Ford represented to
Plaintiff and Wisconsin Class members that they were purchasing or leasing fuel
010825-11/1171942 V1 - 136 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.145 Page 145 of 225
efficient vehicles, when in fact the Coastdown Cheating Vehicles do not perform
as advertised and certified and do not accurately report their own fuel
consumption.
385. Ford actively concealed and/or suppressed these material facts, in
whole or in part, to pad and protect its profits and to avoid the perception that its
vehicles were not fuel efficient or low emissions, which perception would hurt the
brand’s image and cost Ford money, and it did so at the expense of Plaintiff and
Wisconsin Class members.
386. Ford has still not made full and adequate disclosures and continues to
defraud Plaintiff and Wisconsin Class members by concealing material information
regarding the fuel efficiency of its Coastdown Cheating Vehicles.
387. Plaintiff and Wisconsin Class members were unaware of the omitted
material facts referenced herein, and they would not have acted as they did if they
had known of the concealed and/or suppressed facts, in that they would not have
purchased purportedly fuel efficient vehicles manufactured by Ford, and/or would
have taken other affirmative steps in light of the information concealed from them.
Plaintiff’s and Wisconsin Class members’ actions were justified. Ford was in
exclusive control of the material facts, and such facts were not generally known to
the public, Plaintiff, or Wisconsin Class members.
010825-11/1171942 V1 - 137 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.146 Page 146 of 225
388. Accordingly, Ford is liable to Plaintiff and Wisconsin Class members
for damages in an amount to be proven at trial.
389. Ford’s acts were done wantonly, maliciously, oppressively,
deliberately, with intent to defraud, and in reckless disregard of Plaintiff’s and
Wisconsin Class members’ rights and the representations that Ford made to them
were made in order to enrich Ford. Ford’s conduct warrants an assessment of
punitive damages in an amount sufficient to deter such conduct in the future, which
amount is to be determined according to proof.
Claims brought on behalf of the other state classes
COUNT 26
VIOLATION OF THE ALABAMA DECEPTIVE TRADE PRACTICES ACT (ALA. CODE § 8-19-1 et seq.) 390. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
391. This claim is included here for notice purposes only. Once the
statutory notice period has expired, Plaintiffs will amend their complaint to bring
this claim on behalf of Alabama purchasers who are members of the Class.
392. The Alabama Deceptive Trade Practices Act (Alabama DTPA)
declares several specific actions to be unlawful, including: “engaging in any other
010825-11/1171942 V1 - 138 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.147 Page 147 of 225
unconscionable, false, misleading, or deceptive act or practice in the conduct of
trade or commerce.” ALA. CODE § 8-19-5.
393. Plaintiffs and Alabama Class members are “consumers” within the
meaning of ALA. CODE. § 8-19-3(2).
394. Plaintiffs, Alabama Class members, and Ford are “persons” within the
meaning of ALA. CODE § 8-19-3(3).
395. Ford was and is engaged in “trade or commerce” within the meaning
of ALA. CODE § 8-19-3(8).
396. Pursuant to ALA. CODE § 8-19-10, Plaintiffs will amend to seek
monetary relief against Ford measured as the greater of (a) actual damages in an
amount to be determined at trial and (b) statutory damages in the amount of $100
for each plaintiff.
397. Plaintiffs also will amend to seek an order enjoining Ford’s unfair,
unlawful, and/or deceptive practices, attorneys’ fees, and any other just and proper
relief available under ALA. CODE. § 8-19-1, et seq.
398. On June 20, 2019, Plaintiffs sent a letter complying with ALA. CODE
§ 8-19-10(e) to Ford. Should Ford fail to remedy its unlawful conduct within the
requisite period, Plaintiff will amend to seek all damages and relief to which they
are entitled.
010825-11/1171942 V1 - 139 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.148 Page 148 of 225
COUNT 27
VIOLATION OF THE ALASKA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION ACT (ALASKA STAT. ANN. § 45.50.471 et seq.)
399. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
400. This claim is included here for notice purposes only. Once the
statutory notice period has expired, Plaintiffs will amend their complaint to bring
this claim on behalf of Alaska purchasers who are members of the Class.
401. The Alaska Unfair Trade Practices and Consumer Protection Act
(Alaska CPA) declared unfair methods of competition and unfair or deceptive acts
or practices in the conduct of trade or commerce unlawful, including “using or
employing deception, fraud, false pretense, false promise, misrepresentation, or
knowingly concealing, suppressing, or omitting a material fact with intent that
others rely upon the concealment, suppression or omission in connection with the
sale or advertisement of goods or services whether or not a person has in fact been
misled, deceived or damaged.” ALASKA STAT. ANN. § 45.50.471.
402. Pursuant to ALASKA STAT ANN. § 45.50.531, Plaintiffs will amend
their Complaint to seek monetary relief against Ford measured as the greater of (a)
three times the actual damages in an amount to be determined at trial or (b) $500
for each plaintiff.
010825-11/1171942 V1 - 140 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.149 Page 149 of 225
403. Plaintiffs also will amend to seek an order enjoining Ford’s unfair,
unlawful, and/or deceptive practices pursuant to ALASKA STAT. ANN.
§ 45.50.535(b)(1), attorneys’ fees, and any other just and proper relief available
under the Alaska CPA.
404. Plaintiffs sent a letter on June 20, 2019 complying with ALASKA STAT.
ANN. § 45.50.535(b)(1) to Ford.
COUNT 28
VIOLATION OF THE ARIZONA CONSUMER FRAUD ACT (ARIZONA REV. STAT. § 44-1521 et seq.) 405. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
406. This claim is brought by Plaintiffs on behalf of Arizona purchasers
who are members of the Class.
407. The Arizona Consumer Fraud Act (Arizona CFA) provides that “[t]he
act, use or employment by any person of any deception, deceptive act or practice,
fraud . . . , misrepresentation, or concealment, suppression or omission of any
material fact with intent that others rely upon such concealment, suppression or
omission, in connection with the sale . . . of any merchandise whether or not any
person has in fact been misled, deceived or damaged thereby, is declared to be an
unlawful practice.” ARIZ. REV. STAT. § 44-1522(A). Ford failed to disclose that the
Coastdown Cheating Vehicles do not provide the fuel efficiency that was
010825-11/1171942 V1 - 141 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.150 Page 150 of 225
advertised and certified, they contain a mileage cheat device that continually lies to
the consumer, and their mileage is far worse than a reasonable consumer would
expect given the premium paid for these vehicles and the representation made by
Ford.
408. Ford, Plaintiffs, and Arizona Class members are “persons” within the
meaning of the Arizona CFA, ARIZ. REV. STAT. § 44-1521(6).
409. Each Coastdown Cheating Vehicle at issue is “merchandise” within
the meaning of ARIZ. REV. STAT. § 44-1521(5).
410. Ford’s conduct, as set forth above, occurred in the conduct of trade or
commerce.
411. Pursuant to the Arizona CFA, Plaintiffs seek monetary relief against
Ford in an amount to be determined at trial. Plaintiffs also seek punitive damages
because Ford engaged in aggravated and outrageous conduct with an evil mind.
412. Plaintiffs also seek an order enjoining Ford’s unfair, unlawful, and/or
deceptive practices, attorneys’ fees, and any other just and proper relief available
under the Arizona CFA.
010825-11/1171942 V1 - 142 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.151 Page 151 of 225
COUNT 29
VIOLATION OF THE ARKANSAS DECEPTIVE TRADE PRACTICES ACT (ARK. CODE ANN. § 4-88-101 et seq.)
413. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
414. This claim is brought by Plaintiffs on behalf of Arkansas purchasers
who are members of the class.
415. The Arkansas Deceptive Trade Practices Act (Arkansas DTPA)
prohibits “[d]eceptive and unconscionable trade practices,” which include but are
not limited to “[e]ngaging in any . . . unconscionable false, or deceptive act or
practice in business, commerce, or trade.” ARK. CODE. ANN. § 4-88-107(a)(10).
The Arkansas DTPA also prohibits, in connection with the sale or advertisement of
any goods, “(1) the act, use, or employment by any person of any deception, fraud,
or pretense; or (2) the concealment, suppression, or omission of any material fact
with intent that other rely upon the concealment, suppression, or omission.” ARK
CODE. ANN. § 4-88-108. Ford failed to disclose that the Coastdown Cheating
Vehicles do not provide the fuel efficiency that was advertised and certified, and
their mileage is far worse than a reasonable consumer would expect given the
premium paid for these vehicles and the representation made by Ford.
010825-11/1171942 V1 - 143 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.152 Page 152 of 225
416. Ford, Plaintiffs, and Arkansas Class members are “persons” within the
meaning of ARK. CODE. ANN. § 4-88-102(5).
417. Each Coastdown Cheating Vehicle at issue constitutes “goods” within
the meaning of ARK. CODE ANN. § 4-88-102(4).
418. Plaintiffs seek monetary relief against Ford in an amount to be
determined at trial. Plaintiffs also seek punitive damages because Ford acted
wantonly in causing Plaintiffs’ and Arkansas Class members’ injuries, or with such
a conscious indifference to the consequences that malice may be inferred.
419. Plaintiffs also seek an order enjoining Ford’s unfair, unlawful, and/or
deceptive practices, attorneys’ fees, and any other just and proper relief available
under the Arkansas DTPA.
COUNT 30
VIOLATIONS OF THE CALIFORNIA UNFAIR COMPETITION LAW (CAL. BUS. & PROF. CODE § 17200 ET SEQ.) 420. Plaintiffs incorporate by reference all paragraphs as though fully set
forth herein.
421. This claim is brought by the California Plaintiffs on behalf of
California purchasers who are members of the Class.
422. California’s Unfair Competition Law (UCL), CAL. BUS. & PROF.
CODE § 17200 et seq., proscribes acts of unfair competition, including “any
010825-11/1171942 V1 - 144 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.153 Page 153 of 225
unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue
or misleading advertising.”
423. Ford’s conduct, as described herein, was and is in violation of the
UCL. Ford’s conduct violates the UCL in at least the following ways:
i. By failing to disclose that the Coastdown Cheating Vehicles do
not achieve the MPGs listed on the Monroney sticker or Ford’s advertising;
ii. By knowingly and intentionally concealing from Plaintiffs and
the other California Class members that the Coastdown Cheating Vehicles contain
reported MPGs via a Coastdown Cheating process that do not achieve the MPGs
listed on the Monroney sticker, do not provide the fuel efficiency that was
advertised and certified, and their mileage is far worse than a reasonable consumer
would expect given the premium paid for these vehicles;
iii. By failing to disclose that fuel economy is achieved with
manipulation of the computer trip meter;
iv. By marketing the Coastdown Cheating Vehicles as fuel
efficient vehicles; and
v. By violating other California laws, including California
consumer protection laws.
010825-11/1171942 V1 - 145 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.154 Page 154 of 225
424. Ford intentionally and knowingly misrepresented material facts
regarding the Coastdown Cheating Vehicles with an intent to mislead Plaintiffs and
the Class.
425. In purchasing or leasing the Coastdown Cheating Vehicles, Plaintiffs
and the other California Class members were deceived by Ford’s failure to disclose
that the Coastdown Cheating Vehicles do not provide the fuel efficiency that was
advertised and certified, and their mileage is far worse than a reasonable consumer
would expect given the representation made by Ford.
426. Plaintiffs and California Class members reasonably relied upon Ford’s
false misrepresentations. They had no way of knowing that Ford’s representations
were false and gravely misleading. As alleged herein, Ford engaged in extremely
sophisticated methods of deception. Plaintiffs and California Class members did
not, and could not, unravel Ford’s deception on their own.
427. Ford knew or should have known that its conduct violated the UCL.
428. Ford owed Plaintiffs and the Class a duty to disclose the truth about
its fuel efficiency manipulation because Ford:
i. Possessed exclusive knowledge that it manipulated the
certification testing and onboard display of mileage;
ii. Intentionally concealed the foregoing from Plaintiffs and the
Class; and/or
010825-11/1171942 V1 - 146 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.155 Page 155 of 225
iii. Made incomplete representations that it manipulated the
certification testing and onboard display of mileage in the Coastdown Cheating
Vehicles to misrepresent the fuel economy, while purposefully withholding
material facts from Plaintiffs and the Class that contradicted these representations.
429. Ford had a duty to disclose that the Coastdown Cheating Vehicles do
not provide the fuel efficiency that was advertised and certified, and their mileage
is far worse than a reasonable consumer would expect given the premium paid for
these vehicles and the representation made by Ford.
430. Ford’s conduct proximately caused injuries to Plaintiffs and the other
California Class members.
431. Plaintiffs and the other California Class members were injured and
suffered ascertainable loss, injury-in-fact, and/or actual damage as a proximate
result of Ford’s conduct in that Plaintiffs and the other California Class members
overpaid for the Coastdown Cheating Vehicles, and/or the Coastdown Cheating
Vehicles have suffered a diminution in value. These injuries are the direct and
natural consequence of Ford’s misrepresentations and omissions.
432. Ford’s violations present a continuing risk to Plaintiffs as well as to
the general public. Ford’s unlawful acts and practices complained of herein affect
the public interest.
010825-11/1171942 V1 - 147 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.156 Page 156 of 225
433. Ford’s misrepresentations and omissions alleged herein caused
Plaintiffs and the other California Class members to make their purchases or leases
of the Coastdown Cheating Vehicles. Absent those misrepresentations and
omissions, Plaintiffs and the other California Class members would not have
purchased or leased these vehicles, would not have purchased or leased the
Coastdown Cheating Vehicles at the prices they paid, and/or would have purchased
or leased less expensive alternative vehicles that did not contain the mileage cheat
device and reduced fuel economy of the Coastdown Cheating Vehicles.
434. Accordingly, Plaintiffs and the other California Class members have
suffered injury in fact, including lost money or property, as a result of Ford’s
misrepresentations and omissions.
435. Plaintiffs request that this Court enter such orders or judgments as
may be necessary to restore to Plaintiffs and members of the Class any money it
acquired by unfair competition, including restitution and/or restitutionary
disgorgement, as provided in CAL. BUS. & PROF. CODE § 17203 and CAL. CIV.
CODE § 3345; and for such other relief as may be appropriate.
COUNT 31
VIOLATIONS OF THE CALIFORNIA FALSE ADVERTISING LAW (CAL. BUS. & PROF. CODE § 17500 ET SEQ.) 436. Plaintiffs incorporate by reference all paragraphs as though fully set
forth herein.
010825-11/1171942 V1 - 148 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.157 Page 157 of 225
437. This claim is brought by the California Plaintiffs on behalf of
California purchasers who are members of the Class.
438. CAL. BUS. & PROF. CODE § 17500 states: “It is unlawful for any . . .
corporation . . . with intent directly or indirectly to dispose of real or personal
property . . . to induce the public to enter into any obligation relating thereto, to
make or disseminate or cause to be made or disseminated . . . from this state before
the public in any state, in any newspaper or other publication, or any advertising
device, . . . or in any other manner or means whatever, including over the Internet,
any statement . . . which is untrue or misleading, and which is known, or which by
the exercise of reasonable care should be known, to be untrue or misleading.” Ford
failed to disclose that the Coastdown Cheating Vehicles do not provide the fuel
efficiency that was advertised and certified, and their mileage is far worse than a
reasonable consumer would expect given the premium paid for these vehicles and
the representation made by Ford.
439. Ford caused to be made or disseminated through California and the
United States, through advertising, marketing and other publications, statements
that were untrue or misleading, and which were known, or which by the exercise of
reasonable care should have been known to Ford, to be untrue and misleading to
consumers, including Plaintiffs and the other California Class members.
010825-11/1171942 V1 - 149 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.158 Page 158 of 225
440. Ford has violated § 17500 because the misrepresentations and
omissions regarding the functionality and fuel efficiency of the Coastdown
Cheating Vehicles as set forth in this Complaint were material and likely to
deceive a reasonable consumer.
441. Plaintiffs and the other California Class members have suffered an
injury in fact, including the loss of money or property, as a result of Ford’s unfair,
unlawful, and/or deceptive practices. In purchasing or leasing their Coastdown
Cheating Vehicles, Plaintiffs and the other California Class members relied on the
misrepresentations and/or omissions of Ford with respect to the functionality and
fuel economy of the Coastdown Cheating Vehicles. Had Plaintiffs and the other
California Class members known this, they would not have purchased or leased the
Coastdown Cheating Vehicles and/or paid as much for them. Accordingly,
Plaintiffs and the other California Class members overpaid for the Coastdown
Cheating Vehicles.
442. All of the wrongful conduct alleged herein occurred, and continues to
occur, in the conduct of Ford’s business. Ford’s wrongful conduct is part of a
pattern or generalized course of conduct that is still perpetuated and repeated, both
in the State of California and nationwide.
443. The facts concealed and omitted by Ford to Plaintiffs and the other
California Class members are material in that a reasonable consumer would have
010825-11/1171942 V1 - 150 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.159 Page 159 of 225
considered them to be important in deciding whether to purchase or lease the
Coastdown Cheating Vehicles or pay a lower price. Had Plaintiffs and the other
California Class members known of the lower fuel economy or onboard mileage
cheat device at the time they purchased or leased the Coastdown Cheating
Vehicles, they would not have purchased or leased those vehicles, or would have
paid substantially less for the vehicles than they did.
444. Plaintiffs have provided Ford with notice of its violations of the
CLRA pursuant to CAL. CIV. CODE § 1782(a). The notice was transmitted to Ford
on June 20, 2019.
445. Plaintiffs’ and the other California Class members’ injuries were
proximately caused by Ford’s fraudulent and deceptive business practices.
446. Therefore, Plaintiffs and the other California Class members are
entitled to equitable and monetary relief under the CLRA.
447. Plaintiffs, individually and on behalf of the other California Class
members, request that this Court enter such orders or judgments as may be
necessary to restore to Plaintiffs and the other California Class members any
money Ford acquired by unfair competition, including restitution and/or
restitutionary disgorgement, and for such other relief as may be appropriate.
010825-11/1171942 V1 - 151 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.160 Page 160 of 225
COUNT 32
VIOLATION OF THE COLORADO CONSUMER PROTECTION ACT (COLO. REV. STAT. § 6-1-101 et seq.) 448. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
449. This claim is brought by Plaintiffs on behalf of Colorado purchasers
who are members of the Class.
450. The Colorado Consumer Protection Act (Colorado CPA) prohibits
deceptive practices in the course of a person’s business, including but not limited
to “fail[ing] to disclose material information concerning goods, services, or
property which information was known at the time of an advertisement or sale if
such failure to disclose such information was intended to induce the consumer to
enter into a transaction.” COLO. REV. STAT. § 6-1-105.
451. Ford is a “person” under COLO. REV. STAT. § 6-1-102(6).
452. Plaintiffs and Colorado Class members are “consumers” for purposes
of COLO. REV. STAT § 6-1-113(1)(a).
453. Ford’s conduct, as set forth above, occurred in the conduct of trade or
commerce.
454. Pursuant to COLO. REV. STAT. § 6-1-113, Plaintiffs seek monetary
relief against Ford measured as the greater of (a) actual damages in an amount to
010825-11/1171942 V1 - 152 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.161 Page 161 of 225
be determined at trial and discretionary trebling of such damages, or (b) statutory
damages in the amount of $500 for each plaintiff or class member.
455. Plaintiffs also seek an order enjoining Ford’s unfair, unlawful, or
deceptive practices, declaratory relief, attorneys’ fees, and any other just and
proper remedy under the Colorado CPA.
COUNT 33
VIOLATION OF THE CONNECTICUT UNFAIR TRADE PRACTICES ACT (CONN. GEN. STAT. § 42-110A et seq.)
456. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
457. This claim is brought by Plaintiffs on behalf of Connecticut
purchasers who are members of the Class.
458. The Connecticut Unfair Trade Practices Act (Connecticut UTPA)
provides: “No person shall engage in unfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade or commerce.” CONN. GEN.
STAT. § 42-110b(a).
459. Plaintiffs, Connecticut Class members, and Ford are each a “person”
within the meaning of CONN. GEN. STAT. § 42-110a(3).
460. Ford’s challenged conduct occurred in “trade” or “commerce” within
the meaning of CONN. GEN. STAT. § 42-110a(4).
010825-11/1171942 V1 - 153 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.162 Page 162 of 225
461. Plaintiffs and Connecticut Class members are entitled to recover their
actual damages, punitive damages, and attorneys’ fees pursuant to CONN. GEN.
STAT. § 42-110g.
462. Ford acted with reckless indifference to another’s rights, or wanton or
intentional violation of another’s rights, and otherwise engaged in conduct
amounting to a particularly aggravated, deliberate disregard for the rights of others.
Therefore, punitive damages are warranted.
COUNT 34
VIOLATION OF THE DELAWARE CONSUMER FRAUD ACT (DEL. CODE TIT. 6, § 2513 et seq.)
463. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
464. This claim is brought by Plaintiffs on behalf of Delaware purchasers
who are members of the Class.
465. The Delaware Consumer Fraud Act (Delaware CFA) prohibits the
“act, use, or employment by any person of any deception, fraud, false pretense,
false promise, misrepresentation, or the concealment, suppression, or omission of
any material fact with intent that others rely upon such concealment, suppression,
or omission, in connection with the sale, lease or advertisement of any
merchandise, whether or nor any person has in fact been misled, deceived, or
damaged thereby.” DEL. CODE TIT. 6, § 2513(a).
010825-11/1171942 V1 - 154 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.163 Page 163 of 225
466. Ford is a “person” within the meaning of DEL. CODE TIT. 6, § 2511(7).
467. Ford’s actions, as set forth above, occurred in the conduct of trade or
commerce.
468. Plaintiffs seeks damages under the Delaware CFA for injury resulting
from the direct and natural consequences of Ford’s unlawful conduct. See, e.g.,
Stephenson v. Capano Dev., Inc., 462 A.2d 1069, 1077 (Del. 1980). Plaintiffs also
seek an order enjoining Ford’s unfair, unlawful, and/or deceptive practices,
declaratory relief, attorneys’ fees, and any other just and proper relief available
under the Delaware CFA.
469. Ford engaged in gross, oppressive, or aggravated conduct justifying
the imposition of punitive damages.
COUNT 35
VIOLATIONS OF THE FLORIDA UNFAIR AND DECEPTIVE TRADE PRACTICES ACT (FLA. STAT. § 501.201 ET SEQ.) 470. Plaintiffs incorporate by reference all preceding allegations as though
fully set forth herein.
471. Plaintiffs bring this Count on behalf of the Florida Subclass.
472. Plaintiffs and the Subclass are “consumers” within the meaning of
Florida Unfair and Deceptive Trade Practices Act (Florida UDTPA), FLA. STAT.
§ 501.203(7).
010825-11/1171942 V1 - 155 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.164 Page 164 of 225
473. Defendants engaged in “trade or commerce” within the meaning of
FLA. STAT. § 501.203(8).
474. Florida’s Deceptive and Unfair Trade Practices Act prohibits “[u]nfair
methods of competition, unconscionable acts or practices, and unfair or deceptive
acts or practices in the conduct of any trade or commerce.” FLA. STAT.
§ 501.204(1). Defendants participated in unfair and deceptive trade practices that
violated the Florida UDTPA as described herein. Defendant engaged in unfair
methods of competition, unconscionable acts or practices, and unfair or deceptive
acts or practices as defined in FLA. STAT. § 501.204(1). Defendant’s conduct
offends established public policy, is immoral, unethical, oppressive, unscrupulous,
or substantially injurious to consumers, and is likely to mislead consumers.
475. Accordingly, the Defendant engaged in unfair methods of
competition, unconscionable acts or practices, and unfair or deceptive acts or
practices, including representing that Coastdown Cheating Vehicles have
characteristics, uses, benefits, and qualities which they do not have; representing
that Coastdown Cheating Vehicles are of a particular standard and quality when
they are not; failing to reveal a material fact, the omission of which tends to
mislead or deceive the consumer, and which fact could not reasonably be known
by the consumer; making a representation of fact or statement of fact material to
the transaction such that a person reasonably believes the represented or suggested
010825-11/1171942 V1 - 156 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.165 Page 165 of 225
state of affairs to be other than it actually is; and failing to reveal facts that are
material to the transaction in light of representations of fact made in a positive
manner.
476. Plaintiffs and Subclass members reasonably relied upon the
Defendant’s false misrepresentations. They had no way of knowing that the
Defendant’s representations were false and gravely misleading. As alleged herein,
the Defendant engaged in extremely sophisticated methods of deception. Plaintiffs
and Subclass members did not, and could not, unravel the Defendant’s deception
on their own.
477. The Defendant’s actions as set forth above occurred in the conduct of
trade or commerce.
478. The Defendant’s unfair or deceptive acts or practices were likely to
and did in fact deceive reasonable consumers.
479. The Defendant intentionally and knowingly misrepresented material
facts regarding the Coastdown Cheating Vehicles with an intent to mislead
Plaintiffs and the Subclass.
480. The Defendant knew or should have known that their conduct violated
the Florida UDTPA.
481. The Defendant owed Plaintiffs and the Subclass a duty to disclose the
truth about their emissions systems manipulation because the Defendant:
010825-11/1171942 V1 - 157 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.166 Page 166 of 225
a. Possessed exclusive knowledge that they manipulated the fuel
mileage tests;
b. Intentionally concealed the foregoing from Plaintiffs and the
Subclass; and/or
c. Made incomplete representations that they manipulated the fuel
mileage tests in the Coastdown Cheating Vehicles to turn off or limit effectiveness
in normal driving conditions, while purposefully withholding material facts from
Plaintiffs and the Subclass that contradicted these representations.
482. The Defendant’s conduct proximately caused injuries to Plaintiffs and
the other Subclass members.
483. Plaintiffs and the other Subclass members were injured and suffered
ascertainable loss, injury-in-fact, and/or actual damage as a proximate result of the
Defendant’s conduct in that Plaintiffs and the other Subclass members overpaid for
their Coastdown Cheating Vehicles and did not receive the benefit of their bargain.
These injuries are the direct and natural consequence of the Defendant’s
misrepresentations and omissions.
484. The Defendant’s violations present a continuing risk to Plaintiffs as
well as to the general public. The Defendant’s unlawful acts and practices
complained of herein affect the public interest.
010825-11/1171942 V1 - 158 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.167 Page 167 of 225
485. Accordingly, the Defendant is liable to Plaintiffs and Subclass
members for damages in an amount to be proven at trial.
COUNT 36
VIOLATION OF THE HAWAII ACT § 480-2(A) (HAW. REV. STAT. § 480 et seq.) 486. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
487. This claim is brought by Plaintiffs on behalf of Hawaii purchasers
who are members of the Class.
488. HAWAII REV. STAT. § 480-2(a) prohibits “unfair methods of
competition and unfair or deceptive acts or practices in the conduct of any trade or
commerce.”
489. Ford is a “person” under HAW. REV. STAT. § 480-1.
490. Plaintiffs and Hawaii Class members are “consumer[s]” as defined by
HAW. REV. STAT. § 480-1, who purchased or leased the Coastdown Cheating
Vehicles at issue.
491. Pursuant to HAW. REV. STAT. § 480-13, Plaintiffs seek monetary relief
against Ford measured as the greater of (a) $1,000 and (b) threefold actual
damages in an amount to be determined at trial.
492. Under HAW. REV. STAT. § 480-13.5, Plaintiffs seek an additional
award against Ford of up to $10,000 for each violation directed at a Hawaii elder.
010825-11/1171942 V1 - 159 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.168 Page 168 of 225
Ford knew or should have known that its conduct was directed to one or more
Plaintiffs who are elders. Ford’s conduct caused one or more of these elders to
suffer a substantial loss of property set aside for retirement or for personal or
family care and maintenance, or assets essential to the health or welfare of the
elder. Plaintiffs who are elders are substantially more vulnerable to Ford’s conduct
because of age, poor health or infirmity, impaired understanding, restricted
mobility, or disability, and each of them suffered a substantial physical, emotional,
or economic damage resulting from Ford’s conduct.
COUNT 37
VIOLATION OF THE IDAHO CONSUMER PROTECTION ACT (IDAHO CODE ANN. § 48-601 et seq.) 493. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
494. This claim is brought by Plaintiffs on behalf of Idaho purchasers who
are members of the Class.
495. The Idaho Consumer Protection Act (Idaho CPA) prohibits deceptive
business practices, including but not limited to (1) representing that the Coastdown
Cheating Vehicles have characteristics, uses, and benefits which they do not have;
(2) representing that the Coastdown Cheating Vehicles are of a particular standard,
quality, and grade when they are not; (3) advertising the Coastdown Cheating
Vehicles with the intent not to sell them as advertised and certified; (4) engaging in
010825-11/1171942 V1 - 160 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.169 Page 169 of 225
acts or practices which are otherwise misleading, false, or deceptive to the
consumer; and (5) engaging in any unconscionable method, act or practice in the
conduct of trade or commerce. See IDAHO CODE ANN. § 48-603.
496. Ford is a “person” under IDAHO CODE ANN. § 48-602(1).
497. Ford’s acts or practices as set forth above occurred in the conduct of
“trade” or “commerce” under IDAHO CODE ANN. § 48-602(2).
498. Pursuant to IDAHO CODE ANN. § 48-608, Plaintiffs seek monetary
relief against Ford measured as the greater of (a) actual damages in an amount to
be determined at trial and (b) statutory damages in the amount of $1,000 for each
plaintiff.
499. Plaintiffs also seek an order enjoining Ford’s unfair, unlawful, and/or
deceptive practices, attorneys’ fees, and any other just and proper relief available
under the Idaho CPA.
500. Plaintiffs also seek punitive damages against Ford because its conduct
evidences an extreme deviation from reasonable standards. Ford’s unlawful
conduct constitutes malice, oppression, and fraud warranting punitive damages.
010825-11/1171942 V1 - 161 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.170 Page 170 of 225
COUNT 38
VIOLATION OF THE INDIANA DECEPTIVE CONSUMER SALES ACT (IND. CODE § 24-5-0.5-3)
501. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
502. This claim is included here for notice purposes only. Once the
statutory notice period has expired, Plaintiffs will amend their complaint to bring
this claim on behalf of Indiana purchasers who are members of the Class.
503. Indiana’s Deceptive Consumer Sales Act (Indiana DCSA) prohibits a
person from engaging in a “deceptive business practice[s]” or acts, including but
not limited to “(1) That such subject of a consumer transaction has sponsorship,
approval, performance, characteristics, accessories, uses, or benefits that they do
not have, or that a person has a sponsorship, approval, status, affiliation, or
connection it does not have; (2) That such subject of a consumer transaction is of a
particular standard, quality, grade, style or model, if it is not and if the supplier
knows or should reasonably know that it is not; . . . (7) That the supplier has a
sponsorship, approval or affiliation in such consumer transaction that the supplier
does not have, and which the supplier knows or should reasonably know that the
supplier does not have; . . . (b) Any representations on or within a product or its
packaging or in advertising or promotional materials which would constitute a
010825-11/1171942 V1 - 162 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.171 Page 171 of 225
deceptive act shall be the deceptive act both of the supplier who places such a
representation thereon or therein, or who authored such materials, and such
suppliers who shall state orally or in writing that such representation is true if such
other supplier shall know or have reason to know that such representation was
false.”
504. Ford is a “person” within the meaning of IND. CODE § 25-5-0.5-
2(a)(2) and a “supplier” within the meaning of IND. CODE § 24-5-0.5-2(a)(3).
505. Plaintiffs’ vehicle purchases are “consumer transactions” within the
meaning of IND. CODE § 24-5-0.5-2(a)(3).
506. Pursuant to IND. CODE § 24-5-0.5-4, once the statutory notice period
has expired, Plaintiffs will seek monetary relief against Ford measured as the
greater of (a) actual damages in an amount to be determined at trial and
(b) statutory damages in the amount of $500 for each plaintiff, including treble
damages up to $1,000 for Ford’s willfully deceptive acts.
507. Plaintiffs will also amend to seek punitive damages based on the
outrageousness and recklessness of Ford’s conduct.
508. On June 20, 2019, Plaintiffs sent a letter complying with IND. CODE
§ 24-5-0.5-5(a) to Ford.
010825-11/1171942 V1 - 163 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.172 Page 172 of 225
COUNT 39
VIOLATION OF THE IOWA PRIVATE RIGHT OF ACTION FOR CONSUMER FRAUDS ACT (IOWA CODE § 714h.1 et seq.)
509. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
510. This claim is brought by Plaintiffs on behalf of Iowa purchasers who
are members of the Class.
511. The Iowa Private Right of Action for Consumer Frauds Act (Iowa
CFA) prohibits any “practice or act the person knows or reasonably should know is
an unfair practice, deception, fraud, false pretense, or false promise, or the
misrepresentation, concealment, suppression, or omission of a material fact, with
the intent that others rely upon the unfair practice, deception, fraud, false pretense,
false promise, misrepresentation, concealment, suppression or omission in
connection with the advertisement, sale, or lease of consumer merchandise.” IOWA
CODE § 714H.3.
512. Ford is a “person” under IOWA CODE § 714H.2(7).
513. Plaintiffs and Iowa Class members are “consumers” as defined by
IOWA CODE § 714H.2(3) who purchased or leased one or more Coastdown
Cheating Vehicles.
010825-11/1171942 V1 - 164 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.173 Page 173 of 225
514. Pursuant to IOWA CODE § 714H.5, Plaintiffs seek an order enjoining
Ford’s unfair and/or deceptive acts or practices, actual damages, statutory damages
up to three times the amount of actual damages awarded as a result of Ford’s
willful and wanton disregard for the rights of others, attorneys’ fees, and other such
equitable relief as the court deems necessary to protect the public from further
violations of the Iowa CFA.
COUNT 40
VIOLATION OF THE KANSAS CONSUMER PROTECTION ACT (KAN. STAT. ANN. § 50-623 et seq.) 515. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
516. This claim is brought by Plaintiffs on behalf of Kansas purchasers
who are members of the Class.
517. The Kansas Consumer Protection Act (Kansas CPA) states “[n]o
supplier shall engage in any deceptive act or practice in connection with a
consumer transaction.” KAN. STAT. ANN. § 50-626(a). Deceptive acts or practices
include but are not limited to “the willful use, in any oral or written representation,
of exaggeration, falsehood, innuendo or ambiguity as to a material fact” and “the
willful failure to state a material fact, or the willful concealment, suppression or
omission of a material fact.” KAN. STAT. ANN. § 50-626.
010825-11/1171942 V1 - 165 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.174 Page 174 of 225
518. Plaintiffs and Kansas Class members are “consumers” within the
meaning of KAN. STAT. ANN. § 50-624(b) who purchased or leased one or more
Coastdown Cheating Vehicles.
519. Each sale or lease of an Coastdown Cheating Vehicle to Plaintiffs was
a “consumer transaction” within the meaning of KAN. STAT. ANN. § 50-624(c).
520. Pursuant to KAN. STAT. ANN. § 50-634, Plaintiffs seek monetary relief
against Ford measured as the greater of (a) actual damages in an amount to be
determined at trial and (b) statutory damages in the amount of $10,000 for each
plaintiff.
521. Plaintiffs also seek an order enjoining Ford’s unfair, unlawful, and/or
deceptive practices, declaratory relief, attorneys’ fees, and any other just and
proper relief available under KAN. STAT. ANN. § 50-623 et seq.
COUNT 41
VIOLATIONS OF THE KENTUCKY CONSUMER PROTECTION ACT (KY. REV. STAT. § 367.110 ET SEQ.).
522. Plaintiffs incorporate by reference all paragraphs as though fully set
forth herein.
523. Plaintiffs bring this Count on behalf of the Kentucky Class members.
524. Ford, Plaintiffs, and the Kentucky Class are “persons” within the
meaning of the KY. REV. STAT. § 367.110(1).
010825-11/1171942 V1 - 166 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.175 Page 175 of 225
525. Ford engaged in “trade” or “commerce” within the meaning of KY.
REV. STAT. § 367.110(2).
526. The Kentucky Consumer Protection Act (Kentucky CPA) makes
unlawful “[u]nfair, false, misleading, or deceptive acts or practices in the conduct
of any trade or commerce ….” KY. REV. STAT. § 367.170(1). In the course of
Ford’s business, it willfully failed to disclose and actively concealed the true
mileage of the Coastdown Cheating Vehicles, which is less than a reasonable
consumer would expect in light of Ford’s advertising campaign, and that the
Coastdown Cheating Vehicles contained a mileage cheat device to continually
misrepresent the Coastdown Cheating Vehicles’ mileage to the consumer.
Accordingly, Ford engaged in deceptive business practices prohibited by the
Kentucky CPA.
527. In purchasing or leasing the Coastdown Cheating Vehicles, Plaintiffs
and the other Class members were deceived by Ford’s misrepresentation of fuel
efficiency and inclusion of a mileage cheat device to continually misrepresent the
vehicle’s fuel economy, as described above.
528. Plaintiffs and Class members reasonably relied upon Ford’s false
misrepresentations. They had no way of knowing that Ford’s representations were
false and gravely misleading. As alleged herein, Ford engaged in extremely
010825-11/1171942 V1 - 167 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.176 Page 176 of 225
sophisticated methods of deception. Plaintiffs and Class members did not, and
could not, unravel Ford’s deception on their own.
529. Ford’s actions as set forth above occurred in the conduct of trade or
commerce.
530. Ford’s unfair or deceptive acts or practices were likely to and did in
fact deceive reasonable consumers.
531. Ford intentionally and knowingly misrepresented material facts
regarding the Coastdown Cheating Vehicles with an intent to mislead Plaintiffs and
the Class.
532. Ford knew or should have known that its conduct violated the
Kentucky CPA.
533. Ford owed Plaintiffs and the Class a duty to disclose the truth about
its mileage manipulation because Ford:
a. Possessed exclusive knowledge that it manipulated the fuel economy representations and created the mileage cheat device in the Coastdown Cheating Vehicles;
b. Intentionally concealed the foregoing from Plaintiff and the Class; and/or
c. Made incomplete representations that it manipulated the mileage certifications in the Coastdown Cheating Vehicles, while purposefully withholding material facts from Plaintiffs and the Class that contradicted these representations.
534. Ford had a duty to disclose the true mileage and the presence of a
mileage cheat device in the Coastdown Cheating Vehicles, because Plaintiffs and
010825-11/1171942 V1 - 168 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.177 Page 177 of 225
the other Class members relied on Ford’s material representations that the
Coastdown Cheating Vehicles they were purchasing were fuel efficient, and free
from defects or a cheat device.
535. Ford’s conduct proximately caused injuries to Plaintiffs and the other
Class members.
536. Plaintiffs and the other Class members were injured and suffered
ascertainable loss, injury-in-fact, and/or actual damage as a proximate result of
Ford’s conduct in that Plaintiffs and the other Class members overpaid for the
Coastdown Cheating Vehicles and did not receive the benefit of their bargain, and
their Coastdown Cheating Vehicles have suffered a diminution in value. These
injuries are the direct and natural consequence of Ford’s misrepresentations and
omissions.
537. Ford’s violations present a continuing risk to Plaintiffs as well as to
the general public, in terms of continued misrepresentations, continued excess fuel
consumption, and continued increases in pollution, and therefore Ford’s unlawful
acts and practices complained of herein affect the public interest.
538. Pursuant to KY. REV. STAT. ANN. § 367.220, Plaintiffs and the Class
seek to recover actual damages in an amount to be determined at trial; declaratory
relief; attorneys’ fees; and any other just and proper relief available under KY. REV.
STAT. ANN. § 367.220.
010825-11/1171942 V1 - 169 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.178 Page 178 of 225
COUNT 42
VIOLATION OF THE MAINE UNFAIR TRADE PRACTICES ACT (ME. REV. STAT. ANN. TIT. 5, § 205-A et seq.) 539. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
540. This claim is brought by Plaintiffs on behalf of Maine purchasers who
are members of the Class.
541. The Maine Unfair Trade Practices Act (Maine UTPA) makes
unlawful “[u]nfair methods of competition and unfair or deceptive acts or practices
in the conduct of any trade or commerce.” ME. REV. STAT. ANN. TIT. 5, § 207.
542. Ford, Plaintiffs, and Maine Class members are “persons” within the
meaning of ME. REV. STAT. ANN. TIT. § 5, 206(2).
543. Ford is engaged in “trade” or “commerce” within the meaning of ME.
REV. STAT. ANN. TIT. § 5, 206(3).
544. Pursuant to ME. REV. STAT. ANN. TIT. 5, § 213, Plaintiffs seeks an
order enjoining Ford’s unfair and/or deceptive acts or practices.
545. On June 20, 2019, Plaintiffs sent a letter complying with ME. REV.
STAT. ANN. TIT. 5, § 213(1-A) to Ford. This claim is included here for notice
purposes only. Once the statutory notice period has expired, Plaintiffs will amend
their complaint to bring this claim on behalf of Maine purchasers who are members
of the Class.
010825-11/1171942 V1 - 170 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.179 Page 179 of 225
COUNT 43
VIOLATION OF THE MARYLAND CONSUMER PROTECTION ACT (MD. CODE ANN., COM. LAW § 13-101 et seq.) 546. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
547. This claim is brought by Plaintiffs on behalf of Maryland purchasers
who are members of the Class.
548. The Maryland Consumer Protection Act (Maryland CPA) provides
that a person may not engage in any unfair or deceptive trade practice in the sale or
lease of any consumer good, including “failure to state a material fact if the failure
deceives or tends to deceive” and “[d]eception, fraud, false pretense, false premise,
misrepresentation, or knowing concealment, suppression, or omission of any
material fact with the intent that a consumer rely on the same,” MD. CODE ANN.,
COM. LAW § 13-301, regardless of whether the consumer is actually deceived or
damaged, MD. CODE ANN., COM. LAW § 13-302.
549. Ford, Plaintiffs, and Maryland Class members are “persons” within
the meaning of MD. CODE ANN., COM. LAW § 13-101(h).
550. Pursuant to MD. CODE ANN., COM. LAW § 13-408, Plaintiffs seek
actual damages, attorneys’ fees, and any other just and proper relief available
under the Maryland CPA.
010825-11/1171942 V1 - 171 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.180 Page 180 of 225
COUNT 44
VIOLATION OF THE MASSACHUSETTS GENERAL LAW CHAPTER 93(A) (MASS. GEN. LAWS CH. 93A, § 1, et seq.)
551. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
552. On June 20, 2019, Plaintiffs sent a letter complying with MASS. GEN.
LAWS CH. 93A, § 9(3) to Ford.
COUNT 45
VIOLATION OF THE MICHIGAN CONSUMER PROTECTION ACT (MICH. COMP. LAWS § 445.903 et seq.) 553. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
554. This claim is brought by Plaintiffs on behalf of Michigan purchasers
who are members of the Class.
555. The Michigan Consumer Protection Act (Michigan CPA) prohibits
“[u]nfair, unconscionable, or deceptive methods, acts, or practices in the conduct
of trade or commerce,” including “[f]ailing to reveal a material fact, the omission
of which tends to mislead or deceive the consumer, and which fact could not
reasonably be known by the consumer”; “[m]aking a representation of fact or
statement of fact material to the transaction such that a person reasonably believes
the represented or suggested state of affairs to be other than it actually is”; or
010825-11/1171942 V1 - 172 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.181 Page 181 of 225
“[f]ailing to reveal facts that are material to the transaction in light of
representations of fact made in a positive manner.” MICH. COMP. LAWS
§ 445.903(1). Ford failed to disclose that the Coastdown Cheating Vehicles do not
have the advertised fuel economy, contain a mileage cheat device; and that fuel
economy were far worse than a reasonable consumer would expect given the
premium paid for these vehicles over a comparable vehicle.
556. Plaintiff and Michigan Class members are “person[s]” within the
meaning of the MICH. COMP. LAWS § 445.902(1)(d).
557. Ford is a “person” engaged in “trade or commerce” within the
meaning of the MICH. COMP. LAWS § 445.902(1)(d) and (g).
558. Plaintiffs seek injunctive relief to enjoin Ford from continuing their
unfair and deceptive acts; monetary relief against Ford measured as the greater of
(a) actual damages in an amount to be determined at trial and (b) statutory damages
in the amount of $250 for each plaintiff; reasonable attorneys’ fees; and any other
just and proper relief available under MICH. COMP. LAWS § 445.911.
559. Plaintiffs also seek punitive damages because Ford carried out
despicable conduct with willful and conscious disregard of the rights of others.
Ford’s conduct constitutes malice, oppression, and fraud warranting punitive
damages.
010825-11/1171942 V1 - 173 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.182 Page 182 of 225
COUNT 46
VIOLATION OF THE MINNESOTA PREVENTION OF CONSUMER FRAUD ACT (MINN. STAT. § 325F.68 et seq.)
560. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
561. This claim is brought by Plaintiffs on behalf of Minnesota purchasers
who are members of the Class.
562. The Minnesota Prevention of Consumer Fraud Act (Minnesota CFA)
prohibits “[t]he act, use, or employment by any person of any fraud, false pretense,
false promise, misrepresentation, misleading statement or deceptive practice, with
the intent that others rely thereon in connection with the sale of any merchandise,
whether or not any person has in fact been misled, deceived, or damaged thereby.”
MINN. STAT. § 325F.69(1).
563. Each purchase or lease of an Coastdown Cheating Vehicle constitutes
“merchandise” within the meaning of MINN. STAT. § 325F.68(2).
564. Pursuant to MINN. STAT. § 8.31(3a), Plaintiffs seek actual damages,
attorneys’ fees, and any other just and proper relief available under the Minnesota
CFA.
010825-11/1171942 V1 - 174 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.183 Page 183 of 225
565. Plaintiffs also seek punitive damages under MINN. STAT.
§ 549.20(1)(a) given the clear and convincing evidence that Ford’s acts show
deliberate disregard for the rights of others.
COUNT 47
VIOLATION OF THE MINNESOTA DECEPTIVE TRADE PRACTICES ACT (MINN. STAT. § 325D.43-48 ET SEQ.) 566. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
567. This claim is brought by Plaintiffs on behalf of Minnesota purchasers
who are members of the Class.
568. The Minnesota Deceptive Trade Practices Act (Minnesota DTPA)
prohibits deceptive trade practices, which include “[t]he act, use, or employment
by any person of any fraud, false pretense, false promise, misrepresentation,
misleading statement or deceptive practice, with the intent that others rely thereon
in connection with the sale of any merchandise, whether or not any person has in
fact been misled, deceived, or damaged thereby.” MINN. STAT. § 325F.69(1).
569. Pursuant to MINN. STAT. § 8.31(3a), Plaintiffs seek actual damages,
attorneys’ fees, and any other just and proper relief available under the Minnesota
CFA.
010825-11/1171942 V1 - 175 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.184 Page 184 of 225
570. Plaintiffs also seek punitive damages under MINN. STAT.
§ 549.20(1)(a) given the clear and convincing evidence that Ford’s acts show
deliberate disregard for the rights of others.
COUNT 48
VIOLATION OF THE MISSISSIPPI CONSUMER PROTECTION ACT (MISS. CODE. ANN. § 75-24-1 ET SEQ.) 571. Plaintiff hereby incorporates by reference the allegations contained in
the preceding paragraphs of this complaint.
572. This claim is brought by Plaintiffs on behalf of Mississippi purchasers
who are members of the Class.
573. The Mississippi Consumer Protection Act (Mississippi CPA) prohibits
“unfair or deceptive trade practices in or affecting commerce.” MISS. CODE ANN.
§ 75-24-5(1). Unfair or deceptive practices include but are not limited to
“(e) Representing that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits, or quantities that they do not have or
that a person has a sponsorship, approval, status, affiliation, or connection that he
does not have”; “(g) Representing that goods or services are of a particular
standard, quality, or grade, or that goods are of a particular style or model, if they
are of another”; and “(i) Advertising goods or services with intent not to sell them
as advertised and certified.” MISS. CODE ANN. § 75-24-5(2).
010825-11/1171942 V1 - 176 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.185 Page 185 of 225
574. Plaintiffs seek actual damages in an amount to be determined at trial
and any other just and proper relief available under the Mississippi CPA.
COUNT 49
VIOLATION OF THE MISSOURI MERCHANDISING PRACTICES ACT (MO. REV. STAT. § 407.010, ET SEQ.)
575. Plaintiffs incorporate by reference all paragraphs as though fully set
forth herein.
576. This claim is brought by Plaintiffs on behalf of Missouri purchasers
who are members of the Class.
577. Defendants, Plaintiffs and the Missouri Class are “persons” within the
meaning of MO. REV. STAT. § 407.010(5).
578. Defendants engaged in “trade” or “commerce” in the State of
Missouri within the meaning of MO. REV. STAT. § 407.010(7).
579. The Missouri Merchandising Practices Act (“Missouri MPA”) makes
unlawful the “act, use or employment by any person of any deception, fraud, false
pretense, misrepresentation, unfair practice, or the concealment, suppression, or
omission of any material fact in connection with the sale or advertisement of any
merchandise.” MO. REV. STAT. § 407.020. In the course of Defendants’ business,
it willfully failed to disclose and actively concealed that the NOx reduction system
in the Affected Vehicles turns off or is limited during normal driving conditions,
010825-11/1171942 V1 - 177 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.186 Page 186 of 225
that the Affected Vehicles emitted far more pollutants than gasoline powered
vehicles, that the Affected Vehicles emit far more pollution than a reasonable
consumer would expect in light of Defendants’ advertising campaign, and that the
Affected Vehicles emitted unlawfully high levels of pollutants, including NOx, as
described above. Accordingly, Defendants used or employed deception, fraud,
false pretense, false promise, misrepresentation, unfair practice or the concealment,
suppression, or omission of any material fact in connection with the sale or
advertisement of any merchandise in trade or commerce, in violation of the
Missouri MPA. Ford’s conduct offends public policy; is unethical, oppressive, or
unscrupulous; and presents a risk of, or causes, substantial injury to consumers.
580. In the course of business, Ford willfully failed to disclose and actively
concealed the conduct discussed herein and otherwise engaged in activities with a
tendency or capacity to deceive. Ford also engaged in unlawful trade practices by
employing deception, deceptive acts or practices, fraud, misrepresentations, or
concealment, suppression, the use of a mileage cheat device, and/or omission of
any material fact with intent that others rely upon such concealment, suppression,
or omission, in connection with the sale of Coastdown Cheating Vehicles.
581. Ford’s unfair or deceptive acts or practices were likely to and did in
fact deceive reasonable consumers, including Plaintiffs and the other Missouri
Class members, about the true performance of the Coastdown Cheating Vehicles,
010825-11/1171942 V1 - 178 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.187 Page 187 of 225
the lower fuel economy, the shorter range of the vehicle due to its lower fuel
economy, and the increased environmental impact of Ford vehicles, and the true
value of the Coastdown Cheating Vehicles.
582. Ford intentionally and knowingly misrepresented material facts
regarding the Coastdown Cheating Vehicles with intent to mislead Plaintiffs and
the Missouri Class.
583. Ford knew or should have known that their conduct violated the
Missouri MPA.
584. Ford owed Plaintiffs and Missouri Class members a duty to disclose
the performance, fuel mileage, and true environmental impact of the Coastdown
Cheating Vehicles, because Ford:
a. Possessed exclusive knowledge that they were selling and distributing Coastdown Cheating Vehicles throughout the United States that did not perform as advertised and contained a mileage cheat device;
b. Intentionally concealed the foregoing from Plaintiffs and the Missouri Class; and/or
c. Made incomplete representations about the environmental friendliness, fuel mileage, towing capacity, and performance of the Coastdown Cheating Vehicles while purposefully withholding material facts from Plaintiffs and the Missouri Class that contradicted these representations.
585. Because Ford fraudulently concealed the lower mileage of the
Coastdown Cheating Vehicles, the value of the Coastdown Cheating Vehicles has
greatly diminished. In light of the stigma attached to the Coastdown Cheating
010825-11/1171942 V1 - 179 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.188 Page 188 of 225
Vehicles by Ford’s conduct, they are now worth significantly less than they
otherwise would be.
586. Ford’s omissions and/or misrepresentations about the fuel
consumption of the Coastdown Cheating Vehicles were material to Plaintiffs and
the Missouri Class.
587. Plaintiffs and the Missouri Class suffered ascertainable loss caused by
Ford’s misrepresentations and their concealment of and failure to disclose material
information. Class members who purchased the Coastdown Cheating Vehicles
either would have paid less for their vehicles or would not have purchased or
leased them at all but for Ford’s violations of the Missouri MPA.
588. Ford had an ongoing duty to all Ford customers to refrain from unfair
and deceptive practices under the Missouri MPA. All owners of Coastdown
Cheating Vehicles suffered ascertainable loss in the form of the diminished value
of their vehicle as a result of Ford’s deceptive and unfair acts and practices made in
the course of Ford’s business.
589. Ford’s violations present a continuing risk to Plaintiffs as well as to
the general public. Ford’s unlawful acts and practices complained of herein affect
the public interest.
010825-11/1171942 V1 - 180 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.189 Page 189 of 225
590. As a direct and proximate result of Ford’s violations of the Missouri
MPA, Plaintiffs and the Missouri Class have suffered injury-in-fact and/or actual
damage.
591. Plaintiffs seek monetary relief against Ford measured as actual
damages in an amount to be determined at trial, treble damages for Ford’s knowing
violations of the Missouri MPA, and any other just and proper relief available
under the Missouri MPA.
COUNT 50
VIOLATION OF THE MONTANA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION ACT OF 1973 (MONT. CODE ANN. § 30-14-101 et seq.) 592. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
593. This claim is brought by Plaintiffs on behalf of Montana purchasers
who are members of the Class.
594. The Montana Unfair Trade Practices and Consumer Protection Act
(Montana CPA) makes unlawful any “unfair methods of competition and unfair or
deceptive acts or practices in the conduct of any trade or commerce.” MONT. CODE
ANN. § 30-14-103.
595. Ford, Plaintiffs, and Montana Class members are “persons” within the
meaning of MONT. CODE ANN. § 30-14-102(6).
010825-11/1171942 V1 - 181 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.190 Page 190 of 225
596. Plaintiffs and Montana Class members are “consumer[s]” under
MONT. CODE ANN. § 30-14-102(1).
597. The sale or lease of each Coastdown Cheating Vehicle at issue
occurred within “trade and commerce” within the meaning of MONT. CODE ANN.
§ 30-14-102(8), and Ford committed deceptive and unfair acts in the conduct of
“trade and commerce” as defined in that statutory section.
598. Because Ford’s unlawful methods, acts, and practices have caused
Plaintiffs to suffer an ascertainable loss of money and property, Plaintiffs seek
from Ford: the greater of actual damages or $500; discretionary treble damages;
and reasonable attorneys’ fees.
599. Plaintiffs additionally seek an order enjoining Ford’s unfair, unlawful,
and/or deceptive practices, and any other relief the Court considers necessary or
proper, under MONT. CODE ANN. § 30-14-133.
COUNT 51
VIOLATION OF THE NEVADA DECEPTIVE TRADE PRACTICES ACT (NEV. REV. STAT. § 598.0903 et seq.)
600. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
601. This claim is brought by Plaintiffs on behalf of Nevada purchasers
who are members of the Class.
010825-11/1171942 V1 - 182 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.191 Page 191 of 225
602. The Nevada Deceptive Trade Practices Act (Nevada DTPA) prohibits
deceptive trade practices. NEV. REV. STAT. § 598.0915 provides that a person
engages in a “deceptive trade practice” if, in the course of business or occupation,
the person “[k]nowingly makes a false representation as to the characteristics,
ingredients, uses, benefits, alterations or quantities of goods or services for sale or
lease or a false representation as to the sponsorship, approval, status, affiliation or
connection of a person therewith”; “[r]epresents that goods or services for sale or
lease are of a particular standard, quality or grade, or that such goods are of a
particular style or model, if he or she knows or should know that they are of
another standard, quality, grade, style or model”; “[a]dvertises goods or services
with intent not to sell or lease them as advertised and certified”; or “[k]nowingly
makes any other false representation in a transaction.” NEV. REV. STAT.
§§ 598.0915–598.0925. Ford failed to disclose that the Coastdown Cheating
Vehicles did not have the advertised and certified fuel economy and also contained
a mileage cheat device to continually misrepresent the mileage to the consumer;
and (4) that the fuel economy was far worse than a reasonable consumer would
expect given the premium paid for these vehicles over a comparable vehicle.
603. Accordingly, Plaintiffs seek their actual damages, punitive damages,
an order enjoining Ford’s deceptive acts or practices, costs of Court, attorney’s
010825-11/1171942 V1 - 183 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.192 Page 192 of 225
fees, and all other appropriate and available remedies under the Nevada DTPA.
NEV. REV. STAT. § 41.600.
COUNT 52
VIOLATION OF THE NEW HAMPSHIRE CONSUMER PROTECTION ACT (N.H. REV. STAT. ANN. § 358-A:1 et seq.)
604. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
605. This claim is brought by Plaintiffs on behalf of New Hampshire
purchasers who are members of the Class.
606. The New Hampshire Consumer Protection Act (New Hampshire
CPA) prohibits a person, in the conduct of any trade or commerce, from “using any
unfair or deceptive act or practice,” including “but . . . not limited to, the
following: . . . [r]epresenting that goods or services have . . . characteristics, . . .
uses, benefits, or quantities that they do not have”; “[r]epresenting that goods or
services are of a particular standard, quality, or grade, . . . if they are of another”;
and “[a]dvertising goods or services with intent not to sell them as advertised and
certified.” N.H. REV. STAT. § 358-A:2.
607. Ford, Plaintiffs, and New Hampshire Class members are “persons”
under N.H. REV. STAT. ANN. § 358-A:1.
010825-11/1171942 V1 - 184 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.193 Page 193 of 225
608. Ford’s actions as set forth herein occurred in the conduct of trade or
commerce as defined under N.H. REV. STAT. ANN. § 358-A:1.
609. Because Ford’s willful conduct caused injury to Plaintiffs’ property
through violations of the New Hampshire CPA, Plaintiff seeks recovery of actual
damages or $1,000, whichever is greater; treble damages; costs and reasonable
attorneys’ fees; an order enjoining Ford’s unfair and/or deceptive acts and
practices; and any other just and proper relief under N.H. REV. STAT. ANN. § 358-
A:10.
COUNT 53
VIOLATION OF THE NEW JERSEY CONSUMER FRAUD ACT (N.J. STAT. ANN. § 56:8-1 ET SEQ.) 610. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
611. This claim is brought by Plaintiffs on behalf of New Jersey purchasers
who are members of the Class.
612. The New Jersey Consumer Fraud Act (New Jersey CFA) makes
unlawful “[t]he act, use or employment by any person of any unconscionable
commercial practice, deception, fraud, false pretense, false promise,
misrepresentation, or the knowing concealment, suppression or omission of any
material fact with the intent that others rely upon such concealment, suppression or
omission, in connection with the sale or advertisement of any merchandise or real
010825-11/1171942 V1 - 185 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.194 Page 194 of 225
estate, or with the subsequent performance of such person as aforesaid, whether or
not any person has in fact been misled, deceived or damaged thereby.” N.J. STAT.
ANN. § 56:8-2. Ford failed to disclose that the Coastdown Cheating Vehicles do
not have the advertised and certified fuel efficiency, and in fact contain a mileage
cheat device that continually misrepresents the mileage of the vehicle to the user.
The Coastdown Cheating Vehicles’ fuel economy are far worse than a reasonable
consumer would expect given the premium paid for these vehicles over other
vehicles.
613. Ford, Plaintiffs, and New Jersey Class members are “persons” within
the meaning of N.J. STAT. ANN. § 56:8-1(d).
614. Ford engaged in “sales” of “merchandise” within the meaning of N.J.
STAT. ANN. § 56:8-1(c), (d).
615. Plaintiffs are entitled to recover legal and/or equitable relief, including
an order enjoining Ford’s unlawful conduct, treble damages, costs, and reasonable
attorneys’ fees pursuant to N.J. STAT. ANN. § 56:8-19, and any other just and
appropriate relief.
COUNT 54
VIOLATION OF THE NEW YORK GENERAL BUSINESS LAW (N.Y. GEN. BUS. LAW §§ 349–350) 616. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
010825-11/1171942 V1 - 186 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.195 Page 195 of 225
617. This claim is brought by Plaintiffs on behalf of New York purchasers
who are members of the Class.
618. The New York General Business Law (New York GBL) makes
unlawful “[d]eceptive acts or practices in the conduct of any business, trade or
commerce.” N.Y. GEN. BUS. LAW § 349.
619. Plaintiffs and New York Class members are “persons” within the
meaning of N.Y. GEN. BUS. LAW § 349(h).
620. Ford is a “person,” “firm,” “corporation,” or “association” within the
meaning of N.Y. GEN. BUS. LAW § 349.
621. Ford’s deceptive acts and practices, which were intended to mislead
consumers who purchased or leased a Coastdown Cheating Vehicle, was conduct
directed at consumers.
622. Because Ford’s willful and knowing conduct caused injury to
Plaintiffs, Plaintiffs seek recovery of actual damages or $50, whichever is greater;
discretionary treble damages up to $1,000; punitive damages; reasonable attorneys’
fees and costs; an order enjoining Ford’s deceptive conduct; and any other just and
proper relief available under N.Y. GEN. BUS. LAW § 349.
010825-11/1171942 V1 - 187 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.196 Page 196 of 225
COUNT 55
VIOLATION OF THE NEW MEXICO UNFAIR TRADE PRACTICES ACT (N.M. STAT. ANN. § 57-12-1 et seq.)
623. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
624. This claim is brought by Plaintiffs on behalf of New Mexico
purchasers who are members of the Class.
625. The New Mexico Unfair Trade Practices Act (New Mexico UTPA)
makes unlawful “a false or misleading oral or written statement, visual description
or other representation of any kind knowingly made in connection with the sale,
lease, rental or loan of goods or services . . . by a person in the regular course of
the person’s trade or commerce, that may, tends to or does deceive or mislead any
person,” including but not limited to “failing to state a material fact if doing so
deceives or tends to deceive.” N.M. STAT. ANN. § 57-12-2(D). Ford failed to
disclose that the Coastdown Cheating Vehicles did not have the advertised and
certified fuel economy and also contained a mileage cheat device to continually
misrepresent their fuel economy to the driver; and that the fuel economy was far
worse than a reasonable consumer would expect given the premium paid for these
vehicles over a comparable vehicle.
010825-11/1171942 V1 - 188 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.197 Page 197 of 225
626. Ford, Plaintiffs, and New Mexico Class members are “person[s]”
under N.M. STAT. ANN. § 57-12-2.
627. Ford’s actions as set forth herein occurred in the conduct of trade or
commerce as defined under N.M. STAT. ANN. § 57-12-2.
628. Because Ford’s unconscionable, willful conduct caused actual harm to
Plaintiffs, Plaintiffs seek recovery of actual damages or $100, whichever is greater;
discretionary treble damages; punitive damages; and reasonable attorneys’ fees and
costs, as well as all other proper and just relief available under N.M. STAT. ANN.
§ 57-12-10.
COUNT 56
VIOLATION OF THE NORTH CAROLINA UNFAIR AND DECEPTIVE ACTS AND PRACTICES ACT (N.C. GEN. STAT. § 75-1.1 et seq.) 629. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
630. This claim is brought by Plaintiffs on behalf of North Carolina
purchasers who are members of the Class.
631. North Carolina’s Unfair and Deceptive Acts and Practices Act (the
North Carolina Act) broadly prohibits “unfair or deceptive acts or practices in or
affecting commerce.” N.C. GEN. STAT. § 75-1.1(a).
010825-11/1171942 V1 - 189 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.198 Page 198 of 225
632. Ford engaged in “commerce” within the meaning of N.C. GEN. STAT.
§ 75-1.1(b).
633. Plaintiffs seek an order for treble his actual damages, an order
enjoining Ford’s unlawful acts, costs of Court, attorney’s fees, and any other just
and proper relief available under the North Carolina Act, N.C. GEN. STAT. § 75-16.
COUNT 57
VIOLATION OF THE NORTH DAKOTA CONSUMER FRAUD ACT (N.D. CENT. CODE § 51-15-02) 634. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
635. This claim is brought by Plaintiffs on behalf of North Dakota
purchasers who are members of the Class.
636. The North Dakota Consumer Fraud Act (North Dakota CFA) makes
unlawful “[t]he act, use, or employment by any person of any deceptive act or
practice, fraud, false pretense, false promise, or misrepresentation, with the intent
that others rely thereon in connection with the sale or advertisement of any
merchandise.” N.D. CENT. CODE § 51-15-02.
637. Ford, Plaintiffs, and North Dakota Class members are “persons”
within the meaning of N.D. CENT. CODE § 51-15-02(4).
638. Ford engaged in the “sale” of “merchandise” within the meaning of
N.D. CENT. CODE § 51-15-02(3), (5).
010825-11/1171942 V1 - 190 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.199 Page 199 of 225
639. Ford knowingly committed the conduct described above and
therefore, under N.D. CENT. CODE § 51-15-09, Ford is liable to Plaintiffs for treble
damages in amounts to be proven at trial, as well as attorneys’ fees, costs, and
disbursements. Plaintiffs further seek an order enjoining Ford’s unfair and/or
deceptive acts or practices, and other just and proper available relief under the
North Dakota CFA.
COUNT 58
VIOLATION OF THE OKLAHOMA CONSUMER PROTECTION ACT (OKLA. STAT. TIT. 15, § 751 et seq.) 640. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
641. This claim is brought by Plaintiffs on behalf of Oklahoma purchasers
who are members of the Class.
642. The Oklahoma Consumer Protection Act (Oklahoma CPA) declares
unlawful, inter alia, the following acts or practices when committed in the course
of business: making a “misrepresentation, omission or other practice that has
deceived or could reasonably be expected to deceive or mislead a person to the
detriment of that person” and “any practice which offends established public policy
or if the practice is immoral, unethical, oppressive, unscrupulous or substantially
injurious to consumers.” OKLA. STAT. TIT. 15, §§ 752–753.
010825-11/1171942 V1 - 191 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.200 Page 200 of 225
643. Plaintiffs and Oklahoma Class members are “persons” under OKLA.
STAT. TIT. 15, § 752.
644. Ford is a “person,” “corporation,” or “association” within the meaning
of OKLA. STAT. TIT. 15, § 15-751(1).
645. The sale or lease of an Coastdown Cheating Vehicle to Plaintiffs was
a “consumer transaction” within the meaning of OKLA. STAT. TIT. 15, § 752 and
Ford’s actions as set forth herein occurred in the conduct of trade or commerce.
646. Ford’s acts were made knowingly, intentionally, and with malice.
Ford demonstrated a complete lack of care and were in reckless disregard for the
rights of Plaintiffs and the other Class members. Plaintiffs and the other Class
members are therefore entitled to an award of punitive damages to the extent
permitted under applicable law.
647. Ford’s conduct as alleged herein was unconscionable because
(1) Ford, knowingly or had reason to know, took advantage of consumers
reasonably unable to protect their interests because of their ignorance of Ford’s
fraudulent omissions and representations; (2) at the time the consumer transaction
was entered into, Ford knew or had reason to know that the price the consumers
were charged grossly exceeded the price at which they would have paid if they had
known of the Ford’s scheme, and (3) Ford knew or had reason to know that the
010825-11/1171942 V1 - 192 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.201 Page 201 of 225
transaction it induced the consumers to enter into was excessively one-sided in
favor of Ford.
648. Because Ford’s unconscionable conduct caused injury to Plaintiffs,
Plaintiffs seek recovery of actual damages, discretionary penalties up to $2,000 per
violation, and reasonable attorneys’ fees, under OKLA. STAT. TIT. 15, § 761.1.
Plaintiffs further seek an order enjoining Ford’s unfair and/or deceptive acts or
practices, and any other just and proper relief available under the Oklahoma CPA.
COUNT 59
VIOLATION OF THE OREGON UNLAWFUL TRADE PRACTICES ACT (OR. REV. STAT. § 646.605 et seq.) 649. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
650. This claim is brought by Plaintiffs on behalf of Oregon purchasers
who are members of the Class.
651. The Oregon Unfair Trade Practices Act (Oregon UTPA) prohibits a
person from, in the course of the person’s business, doing any of the following:
representing that goods have characteristics uses, benefits, or qualities that they do
not have; representing that goods are of a particular standard or quality if they are
of another; advertising goods or services with intent not to provide them as
advertised and certified; and engaging in any other unfair or deceptive conduct in
010825-11/1171942 V1 - 193 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.202 Page 202 of 225
trade or commerce. OR. REV. STAT. § 646.608(1). Ford failed to disclose that the
Coastdown Cheating Vehicles do not have the advertised and certified fuel
economy; and (4) that emissions and fuel economy were far worse than a
reasonable consumer would expect given the premium paid for these vehicles over
a comparable vehicle.
652. Ford is a person within the meaning of OR. REV. STAT. § 646.605(4).
653. Each Coastdown Cheating Vehicle is a “good” obtained primarily for
personal family or household purposes within the meaning of OR. REV. STAT.
§ 646.605(6).
654. Plaintiffs are entitled to recover the greater of actual damages or $200
pursuant to OR. REV. STAT. § 646.638(1). Plaintiffs are also entitled to punitive
damages because Ford engaged in conduct amounting to a particularly aggravated,
deliberate disregard of the rights of others.
COUNT 60
VIOLATION OF THE PENNSYLVANIA UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW (73 PA. CONS. STAT. § 201-1 ET SEQ.)
655. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
656. This claim is brought by Plaintiffs on behalf of Pennsylvania
purchasers who are members of the Class.
010825-11/1171942 V1 - 194 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.203 Page 203 of 225
657. The Pennsylvania Unfair Trade Practices and Consumer Protection
Law (Pennsylvania CPL) prohibits unfair or deceptive acts or practices, including
representing that goods or services have characteristics, benefits or qualities that
they do not have; representing that goods or services are of a particular standard,
quality or grade if they are of another; advertising goods or services with intent not
to sell them as advertised and certified; and engaging in any other fraudulent or
deceptive conduct which creates a likelihood of confusion or misunderstanding. 73
PA. CONS. STAT. § 201-2(4).
658. Ford, Plaintiffs, and Pennsylvania Class members are “persons”
within the meaning of 73 PA. CONS. STAT. § 201-2(2).
659. Plaintiffs purchased a Coastdown Cheating Vehicle primarily for
personal, family, or household purposes within the meaning of 73 PA. CONS. STAT.
§ 201-9.2.
660. All of the acts complained of herein were perpetrated by Ford in the
course of trade or commerce within the meaning of 73 PA. CONS. STAT. § 201-2(3).
661. Ford is liable to Plaintiffs and the Pennsylvania Class for treble their
actual damages or $100, whichever is greater, and attorneys’ fees and costs. 73 PA.
CONS. STAT. § 201-9.2(a). Plaintiffs and the Pennsylvania Class are also entitled to
an award of punitive damages given that Ford’s conduct was malicious, wanton,
willful, oppressive, or exhibited a reckless indifference to the rights of others.
010825-11/1171942 V1 - 195 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.204 Page 204 of 225
COUNT 61
VIOLATION OF THE RHODE ISLAND UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION ACT (R.I. GEN. LAWS § 6-13.1 et seq.)
662. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
663. This claim is brought by Plaintiffs on behalf of Rhode Island
purchasers who are members of the Class.
664. Rhode Island’s Unfair Trade Practices and Consumer Protection Act
(Rhode Island CPA) prohibits “unfair or deceptive acts or practices in the conduct
of any trade or commerce,” including “[e]ngaging in any act or practice that is
unfair or deceptive to the consumer” and “[u]sing any other methods, acts or
practices which mislead or deceive members of the public in a material respect.”
R.I. GEN. LAWS § 6-13.1-1(6).
665. Ford, Plaintiffs, and Rhode Island Class members are “persons”
within the meaning of R.I. GEN. LAWS § 6-13.1-1(3).
666. Ford was engaged in “trade” and “commerce” within the meaning of
R.I. GEN. LAWS § 6-13.1-1(5).
667. Plaintiffs purchased or leased Coastdown Cheating Vehicles primarily
for personal, family, or household purposes within the meaning of R.I. GEN. LAWS
§ 6-13.1-5.2(a).
010825-11/1171942 V1 - 196 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.205 Page 205 of 225
668. Plaintiffs are entitled to recover the greater of actual damages or $200
pursuant to R.I. GEN. LAWS § 6-13.1-5.2(a). Plaintiffs also seek punitive damages
at the discretion of the Court.
COUNT 62
VIOLATION OF TENNESSEE CONSUMER PROTECTION ACT (TENN. CODE § 47-18-101, et seq.) 669. Plaintiffs incorporate by reference all paragraphs alleged herein.
670. This claim is brought by Plaintiffs on behalf of Tennessee purchasers
who are members of the Class.
671. Plaintiffs and the Tennessee Class are “natural persons” and
“consumers” within the meaning of TENN. CODE § 47-18-103(2).
672. Ford is a “person” within the meaning of TENN. CODE § 47-18-103(2).
673. Ford’s conduct complained of herein affected “trade,” “commerce” or
“consumer transactions” within the meaning of TENN. CODE § 47-18-103(19).
674. The Tennessee Consumer Protection Act (“Tennessee CPA”)
prohibits “[u]nfair or deceptive acts or practices affecting the conduct of any trade
or commerce,” including but not limited to: “Representing that goods or services
have . . . characteristics, [or] . . . benefits . . . that they do not have . . . .”;
“Representing that goods or services are of a particular standard, quality or grade
. . . if they are of another”; and “Advertising goods or services with intent not to
sell them as advertised.” TENN. CODE § 47-18-104. BMW NA and BMW AG
010825-11/1171942 V1 - 197 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.206 Page 206 of 225
violated the Tennessee CPA by engaging in unfair or deceptive acts, including
representing that Affected Vehicles have characteristics or benefits that they did
not have; representing that Affected Vehicles are of a particular standard, quality,
or grade when they are of another; and advertising Affected Vehicles with intent
not to sell them as advertised.
675. In the course of business, Ford willfully failed to disclose and actively
concealed the conduct discussed herein and otherwise engaged in activities with a
tendency or capacity to deceive. Ford also engaged in unlawful trade practices by
employing deception, deceptive acts or practices, fraud, misrepresentations, or
concealment, suppression, the use of a mileage cheat device, and/or omission of
any material fact with intent that others rely upon such concealment, suppression,
or omission, in connection with the sale of Coastdown Cheating Vehicles.
676. Ford’s unfair or deceptive acts or practices were likely to and did in
fact deceive reasonable consumers, including Plaintiffs and the other Tennessee
Class members, about the true performance of the Coastdown Cheating Vehicles,
the lower fuel economy, the shorter range of the vehicle due to its lower fuel
economy, and the increased environmental impact of Ford vehicles, and the true
value of the Coastdown Cheating Vehicles.
010825-11/1171942 V1 - 198 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.207 Page 207 of 225
677. Ford intentionally and knowingly misrepresented material facts
regarding the Coastdown Cheating Vehicles with intent to mislead Plaintiffs and
the Tennessee Class.
678. Ford knew or should have known that their conduct violated the
Tennessee CPA.
679. Ford owed Plaintiffs and Tennessee Class members a duty to disclose
the performance, fuel mileage, and true environmental impact of the Coastdown
Cheating Vehicles, because Ford:
a. Possessed exclusive knowledge that they were selling and distributing Coastdown Cheating Vehicles throughout the United States that did not perform as advertised and contained a mileage cheat device;
b. Intentionally concealed the foregoing from Plaintiffs and the Tennessee Class; and/or
c. Made incomplete representations about the environmental friendliness, fuel mileage, towing capacity, and performance of the Coastdown Cheating Vehicles while purposefully withholding material facts from Plaintiffs and the Tennessee Class that contradicted these representations.
680. Because Ford fraudulently concealed the lower mileage of the
Coastdown Cheating Vehicles, the value of the Coastdown Cheating Vehicles has
greatly diminished. In light of the stigma attached to the Coastdown Cheating
Vehicles by Ford’s conduct, they are now worth significantly less than they
otherwise would be.
010825-11/1171942 V1 - 199 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.208 Page 208 of 225
681. Ford’s omissions and/or misrepresentations about the fuel
consumption of the Coastdown Cheating Vehicles were material to Plaintiffs and
the Tennessee Class.
682. Plaintiffs and the Tennessee Class suffered ascertainable loss caused
by Ford’s misrepresentations and their concealment of and failure to disclose
material information. Class members who purchased the Coastdown Cheating
Vehicles either would have paid less for their vehicles or would not have
purchased or leased them at all but for Ford’s violations of the Tennessee CPA.
683. Ford had an ongoing duty to all Ford customers to refrain from unfair
and deceptive practices under the Tennessee CPA. All owners of Coastdown
Cheating Vehicles suffered ascertainable loss in the form of the diminished value
of their vehicle as a result of Ford’s deceptive and unfair acts and practices made in
the course of Ford’s business.
684. Ford’s violations present a continuing risk to Plaintiffs as well as to
the general public. Ford’s unlawful acts and practices complained of herein affect
the public interest.
685. As a direct and proximate result of Ford’s violations of the Tennessee
CPA, Plaintiffs and the Tennessee Class have suffered injury-in-fact and/or actual
damage.
010825-11/1171942 V1 - 200 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.209 Page 209 of 225
686. Pursuant to TENN. CODE § 47-18-109(a), Plaintiffs, individually and
on behalf of the other Class members, seeks monetary relief against Ford measured
as actual damages in an amount to be determined at trial, treble damages as a result
of Ford’s willful or knowing violations, and any other just and proper relief
available under the Tennessee CPA.
COUNT 63
VIOLATIONS OF THE TEXAS DECEPTIVE TRADE PRACTICES AND CONSUMER PROTECTION ACT (TEX. BUS. & COM. CODE § 17.4 ET SEQ.)
687. Plaintiffs incorporate by reference all paragraphs alleged herein.
688. This claim is brought by Plaintiffs on behalf of Texas purchasers who
are members of the Class.
689. Plaintiffs and the Texas Class members are individuals with assets of
less than $25 million (or are controlled by corporations or entities with less than
$25 million in assets). See TEX. BUS. & COM. CODE § 17.41.
690. The Texas Deceptive Trade Practices-Consumer Protection Act
(“Texas DTPA”) provides a private right of action to a consumer where the
consumer suffers economic damage as the result of either (i) the use of false,
misleading, or deceptive act or practice specifically enumerated in TEX. BUS. &
COM. CODE § 17.46(b); or (ii) “an unconscionable action or course of action by any
person.” TEX. BUS. & COM. CODE § 17.50(a)(2) & (3). The Texas DTPA declares
010825-11/1171942 V1 - 201 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.210 Page 210 of 225
several specific actions to be unlawful, including: “(5) Representing that goods or
services have sponsorship, approval, characteristics, ingredients, uses, benefits, or
qualities that they do not have”; “(7) Representing that goods or services are of a
particular standard, quality, or grade, or that goods are of a particular style or
model, if they are of another”; and “(9) advertising goods or services with intent
not to sell them as advertised.” An “unconscionable action or course of action”
means “an act or practice which, to a consumer’s detriment, takes advantage of the
lack of knowledge, ability, experience, or capacity of the consumer to a grossly
unfair degree.” TEX. BUS. & COM. CODE § 17.45(5). As detailed herein, Ford has
engaged in an unconscionable action or course of action and thereby caused
economic damages to the Texas Class.
691. In the course of business, Ford willfully failed to disclose and actively
concealed the conduct discussed herein and otherwise engaged in activities with a
tendency or capacity to deceive. Ford also engaged in unlawful trade practices by
employing deception, deceptive acts or practices, fraud, misrepresentations, or
concealment, suppression, the use of a mileage cheat device, and/or omission of
any material fact with intent that others rely upon such concealment, suppression,
or omission, in connection with the sale of Coastdown Cheating Vehicles.
692. Ford’s unfair or deceptive acts or practices were likely to and did in
fact deceive reasonable consumers, including Plaintiffs and the other Texas Class
010825-11/1171942 V1 - 202 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.211 Page 211 of 225
members, about the true performance of the Coastdown Cheating Vehicles, the
lower fuel economy, the shorter range of the vehicle due to its lower fuel economy,
and the increased environmental impact of Ford vehicles, and the true value of the
Coastdown Cheating Vehicles.
693. Ford intentionally and knowingly misrepresented material facts
regarding the Coastdown Cheating Vehicles with intent to mislead Plaintiffs and
the Texas Class.
694. Ford knew or should have known that their conduct violated the Texas
DTPA.
695. Ford owed Plaintiffs and Texas Class members a duty to disclose the
performance, fuel mileage, and true environmental impact of the Coastdown
Cheating Vehicles, because Ford:
a. Possessed exclusive knowledge that they were selling and distributing Coastdown Cheating Vehicles throughout the United States that did not perform as advertised and contained a mileage cheat device;
b. Intentionally concealed the foregoing from Plaintiffs and the Texas Class; and/or
c. Made incomplete representations about the environmental friendliness, fuel mileage, towing capacity, and performance of the Coastdown Cheating Vehicles while purposefully withholding material facts from Plaintiffs and the Texas Class that contradicted these representations.
696. Because Ford fraudulently concealed the lower mileage of the
Coastdown Cheating Vehicles, the value of the Coastdown Cheating Vehicles has
010825-11/1171942 V1 - 203 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.212 Page 212 of 225
greatly diminished. In light of the stigma attached to the Coastdown Cheating
Vehicles by Ford’s conduct, they are now worth significantly less than they
otherwise would be.
697. Ford’s omissions and/or misrepresentations about the fuel
consumption of the Coastdown Cheating Vehicles were material to Plaintiffs and
the Texas Class.
698. Plaintiffs and the Texas Class suffered ascertainable loss caused by
Ford’s misrepresentations and their concealment of and failure to disclose material
information. Class members who purchased the Coastdown Cheating Vehicles
either would have paid less for their vehicles or would not have purchased or
leased them at all but for Ford’s violations of the Texas DTPA.
699. Ford had an ongoing duty to all Ford customers to refrain from unfair
and deceptive practices under the Texas DTPA. All owners of Coastdown
Cheating Vehicles suffered ascertainable loss in the form of the diminished value
of their vehicle as a result of Ford’s deceptive and unfair acts and practices made in
the course of Ford’s business.
700. Ford’s violations present a continuing risk to Plaintiffs as well as to
the general public. Ford’s unlawful acts and practices complained of herein affect
the public interest.
010825-11/1171942 V1 - 204 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.213 Page 213 of 225
701. As a direct and proximate result of Ford’s violations of the Texas
DTPA, Plaintiffs and the Texas Class have suffered injury-in-fact and/or actual
damage.
702. On June 20, 2019, Plaintiffs sent a letter complying with TEX. BUS. &
COM. CODE Ann. § 17.505 to Ford.
703. Plaintiffs seek monetary relief against Ford measured as actual
damages in an amount to be determined at trial, treble damages for Ford’s knowing
violations of the Texas DTPA, and any other just and proper relief available under
the Texas DTPA.
704. Alternatively, or additionally, pursuant to TEX. BUS. & COM. CODE
§ 17.50(b)(3) & (4), Plaintiffs are also entitled to disgorgement or to rescission or
to any other relief necessary to restore any money or property that was acquired
from Plaintiffs based on violations of the Texas DTPA or which the Court deems
proper.
COUNT 64
VIOLATION OF THE UTAH CONSUMER SALE PRACTICES ACT (UTAH CODE ANN. § 13-11-1 ET SEQ.)
705. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
706. This claim is brought by Plaintiffs on behalf of Utah purchasers who
are members of the Class.
010825-11/1171942 V1 - 205 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.214 Page 214 of 225
707. The Utah Consumer Sales Practices Act (Utah CSPA) makes unlawful
any “deceptive act or practice by a supplier in connection with a consumer
transaction,” including but not limited to indicating that the subject of a consumer
transaction has sponsorship, approval, performance characteristics, accessories,
uses, or benefits, if it has not; indicating that the subject of a consumer transaction
is of a particular standard, quality, grade, style, or model, if it is not; and
“indicat[ing] that a specific price advantage exists, if it does not.” UTAH CODE
ANN. § 13-11-4.
708. Ford knew, or had reason to know, that consumers would rely on their
failure to disclose the defects in its emissions system. Ford therefore engaged in an
unconscionable act within the meaning of UTAH CODE ANN. § 13-11-5.
709. Pursuant to UTAH CODE ANN. § 13-11-4, Plaintiffs seek monetary
relief measured as the greater of (a) actual damages in an amount to be determined
at trial and (b) statutory damages in the amount of $2,000 for each Plaintiff;
reasonable attorneys’ fees; and any other just and proper relief available under the
Utah CSPA.
COUNT 65
VIOLATION OF THE VERMONT CONSUMER FRAUD ACT (VT. STAT. ANN. TIT. 9, § 2451 ET SEQ.) 710. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
010825-11/1171942 V1 - 206 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.215 Page 215 of 225
711. This claim is brought by Plaintiffs on behalf of Vermont purchasers
who are members of the Class.
712. The Vermont Consumer Fraud Act (Vermont CFA) makes unlawful
“[u]nfair methods of competition in commerce, and unfair or deceptive acts or
practices in commerce.” VT. STAT. ANN. TIT. 9, § 2453(a).
713. Ford was a seller within the meaning of VT. STAT. ANN. TIT. 9,
§ 2451(a)(c).
714. Plaintiffs are entitled to recover “appropriate equitable relief” and “the
amount of [their] damages, or the consideration or the value of the consideration
given by [them], reasonable attorney’s fees, and exemplary damages not exceeding
three times the value of the consideration given by [them],” pursuant to VT. STAT.
ANN. TIT. 9, § 2461(b).
COUNT 66
VIOLATION OF THE VIRGINIA CONSUMER PROTECTION ACT (VA. CODE ANN. § 59.1-196 et seq.)
715. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
716. This claim is brought by Plaintiffs on behalf of Virginia purchasers
who are members of the Class.
717. The Virginia Consumer Protection Act (Virginia CPA) lists prohibited
“practices,” which include “[u]sing any other deception, fraud, false pretense, false
010825-11/1171942 V1 - 207 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.216 Page 216 of 225
promise, or misrepresentation in connection with a consumer transaction.” VA.
CODE ANN. § 59.1-200.
718. Ford is a “supplier” under VA. CODE ANN. § 59.1-198.
719. Each sale and lease of a Coastdown Cheating Vehicle was a
“consumer transaction” within the meaning of VA. CODE ANN. § 59.1-198.
720. Pursuant to VA. CODE ANN. § 59.1-204, Plaintiffs seek monetary relief
against Ford measured as the greater of (a) actual damages in an amount to be
determined at trial and (b) statutory damages in the amount of $500 for each
Plaintiff. Because Ford’s conduct was committed willfully and knowingly,
Plaintiffs are entitled to recover, for each plaintiff, the greater of (a) three times
actual damages or (b) $1,000.
721. Plaintiffs also seek an order enjoining Ford’s unfair and/or deceptive
acts or practices, punitive damages, and attorneys’ fees, and any other just and
proper relief available under VA. CODE ANN. § 59.1-204 et seq.
COUNT 67
VIOLATION OF THE WASHINGTON CONSUMER PROTECTION ACT (WASH. REV. CODE ANN. § 19.86.010 et seq.) 722. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
010825-11/1171942 V1 - 208 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.217 Page 217 of 225
723. This claim is brought by Plaintiffs on behalf of Washington
purchasers who are members of the Class.
724. The Washington Consumer Protection Act (Washington CPA)
broadly prohibits “[u]nfair methods of competition and unfair or deceptive acts or
practices in the conduct of any trade or commerce.” WASH. REV. CODE ANN.
§ 19.96.010.
725. Ford committed the acts complained of herein in the course of “trade”
or “commerce” within the meaning of WASH. REV. CODE ANN. § 19.96.010.
726. Ford is liable to Plaintiffs for damages in amounts to be proven at
trial, including attorneys’ fees, costs, and treble damages, as well as any other
remedies the Court may deem appropriate under WASH. REV. CODE ANN.
§ 19.86.090.
COUNT 68
VIOLATION OF THE WEST VIRGINIA CONSUMER CREDIT AND PROTECTION ACT (W. VA. CODE § 46A-1-101 et seq.)
727. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
728. This claim is included here for notice purposes only. Once the
statutory notice period has expired, Plaintiffs will amend their complaint to bring
this claim on behalf of West Virginia purchasers who are members of the Class.
010825-11/1171942 V1 - 209 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.218 Page 218 of 225
729. Ford is a “person” under W. VA. CODE § 46A-1-102(31).
730. Plaintiffs and West Virginia Class members are “consumers” as
defined by W. VA. CODE §§ 46A-1-102(12) and 46A-6-102(2), who purchased or
leased one or more Coastdown Cheating Vehicles.
731. Ford engaged in trade or commerce as defined by W. VA. CODE
§ 46A-6-102(6).
732. The West Virginia Consumer Credit and Protection Act (West
Virginia CCPA) prohibits “unfair or deceptive acts or practices in the conduct of
any trade or commerce.” W. VA. CODE § 46A-6-104. Without limitation, “unfair or
deceptive” acts or practices include:
(I) Advertising goods or services with intent not to sell them as advertised and certified; . . . (L) Engaging in any other conduct which similarly creates a likelihood of confusion or of misunderstanding; (M) The act, use or employment by any person of any deception, fraud, false pretense, false promise or misrepresentation, or the concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any goods or services, whether or not any person has in fact been misled, deceived or damaged thereby; [and] (N) Advertising, printing, displaying, publishing, distributing or broadcasting, or causing to be advertised and certified, printed, displayed, published, distributed or broadcast in any manner, any statement or representation with regard to the sale of goods or the extension of consumer credit including the rates, terms or conditions for the sale of such goods or the extension of such credit, which is false, misleading or deceptive or which omits to
010825-11/1171942 V1 - 210 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.219 Page 219 of 225
state material information which is necessary to make the statements therein not false, misleading or deceptive.
W. VA. CODE § 46A-6-102(7).
733. Pursuant to W. VA. CODE § 46A-6-106, once the statutory notice
period has expired, Plaintiffs will amend to seek monetary relief against Ford
measured as the greater of (a) actual damages in an amount to be determined at
trial and (b) statutory damages in the amount of $200 per violation of the West
Virginia CCPA for each Plaintiff.
734. Plaintiffs will also amend to seek punitive damages against Ford
because it carried out despicable conduct with willful and conscious disregard of
the rights of others, subjecting Plaintiffs to cruel and unjust hardship as a result.
735. Plaintiffs further seek an order enjoining Ford’s unfair or deceptive
acts or practices, restitution, punitive damages, costs of Court, attorney’s fees
under W. VA. CODE § 46A-5-101, et seq., and any other just and proper relief
available under the West Virginia CCPA.
736. On June 20, 2019, Plaintiffs sent a letter complying with W. VA.
CODE § 46A-6-106(b) to Ford. This claim is included here for notice purposes
only. Once the statutory notice period has expired, Plaintiffs will amend their
complaint to bring this claim on behalf of West Virginia purchasers who are
members of the Class.
010825-11/1171942 V1 - 211 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.220 Page 220 of 225
COUNT 69
VIOLATION OF THE WYOMING CONSUMER PROTECTION ACT (WYO. STAT. § 40-12-105 et seq.) 737. Plaintiffs hereby incorporate by reference the allegations contained in
the preceding paragraphs of this complaint.
738. This claim is included here for notice purposes only. Once the
statutory notice period has expired, Plaintiffs will amend their complaint to bring
this claim on behalf of Wyoming purchasers who are members of the Class.
739. Pursuant to WYO. STAT. § 40-12-108(a), once the statutory notice
period has expired, Plaintiffs will amend to seek monetary relief against Ford
measured as actual damages in an amount to be determined at trial, in addition to
any other just and proper relief available under the Wyoming CPA.
740. On June 20, 2019, Plaintiffs sent a letter complying with WYO. STAT.
§ 45-12-109 to Ford. If Ford fails to remedy their unlawful conduct, Plaintiffs will
seek all damages and relief to which Plaintiffs are entitled.
741. Notice pursuant to: Alabama Code § 8-19-10(e); Alaska Statutes
§ 45.50.535; California Civil Code § 1782; Georgia Code § 10-1-399; Indiana
Code § 24-5-0.5-5(a); Maine Revised Statutes, Title 5, § 50-634(g); Massachusetts
General Laws Chapter 93A, § 9(3); Texas Business & Commercial Code § 17.505;
West Virginia Code § 46A-6-106(b); and Wyoming Statutes § 40-12-109 was sent
to Ford on June 20, 2019.
010825-11/1171942 V1 - 212 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.221 Page 221 of 225
COUNT 70
BREACH OF EXPRESS WARRANTY 742. Plaintiffs reallege and incorporate by reference all paragraphs alleged
herein.
743. Defendant was a merchant with respect to motor vehicles.
744. In selling its vehicles, Ford expressly warranted in advertisements,
including in the stickers affixed to the windows of its vehicles, that its vehicles
provided a favorable fuel economy of specific MPGs, depending on the vehicle.
745. These affirmations and promises were part of the basis of the bargain
between the parties.
746. Defendant breached these warranties arising from its advertisements,
including window stickers, because the fuel economy ratings for its vehicles were
inaccurate.
747. As a direct and proximate result of Ford’s breach of express
warranties, Plaintiffs and members of the Class have been damaged in an amount
to be determined at trial.
COUNT 71
FRAUD
748. Plaintiffs reallege and incorporate by reference all paragraphs alleged
herein.
010825-11/1171942 V1 - 213 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.222 Page 222 of 225
749. Defendant affirmatively misrepresented and concealed material facts
concerning the fuel economy of its vehicles.
750. Defendant had a duty to disclose the true fuel economy based on its
superior knowledge and affirmative misrepresentations to the contrary.
751. Defendant affirmatively misrepresented and/or actively concealed
material facts, in whole or in part, intending to induce Plaintiffs and members of
the Class to purchase their vehicles and at a higher price than they otherwise would
have.
752. Plaintiffs and the Class were unaware of these omitted material facts
and would not have acted as they did if they had known of the concealed and/or
suppressed facts.
COUNT 72
NEGLIGENT MISREPRESENTATION
753. Plaintiffs reallege and incorporate by reference all paragraphs alleged
herein.
754. Defendant made fuel economy representations to Plaintiffs and
members of the Class that were not true.
755. Defendant had no reasonable grounds for believing these
representations were true when they made them, yet they intended that Plaintiffs
and Class members rely on these misrepresentations.
010825-11/1171942 V1 - 214 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.223 Page 223 of 225
756. Plaintiff reasonably relied on Defendant’s representations and as a
result Plaintiff and Class member were harmed.
COUNT 73
UNJUST ENRICHMENT 757. Plaintiffs reallege and incorporate by reference all paragraphs alleged
herein.
758. Because of Ford’s wrongful acts and omissions, Ford charged a higher
price for its vehicles than the vehicles’ true value and Ford obtained monies which
rightfully belong to Plaintiffs.
759. Defendant enjoyed the benefit of increased financial gains, to the
detriment of Plaintiffs and other Class members. It would be inequitable and
unjust for Ford to retain these wrongfully obtained profits.
760. Plaintiffs, therefore, seek an order requiring Ford to make restitution
to them and other members of the Class.
REQUEST FOR RELIEF
WHEREFORE, Plaintiffs, individually and on behalf of all others similarly
situated, respectfully request that the Court enter judgment in their favor and against
Defendants, as follows:
A. Determine this action may be maintained as a Class action with respect
to the Class and certify it as such under Rule 23(b)(3), or alternatively certify all
010825-11/1171942 V1 - 215 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.224 Page 224 of 225
issues and claims that are appropriately certified, and designate and appoint
Plaintiffs as Class Representatives and their counsel as Class Counsel;
B. Declare, adjudge, and decree the conduct of the Defendant as alleged
herein to be unlawful, unfair, and deceptive;
C. Notify all Class members about the lower fuel economy ratings and
higher emissions at Ford’s expense and provide correct fuel economy and emissions
ratings;
D. Award Plaintiffs and Class members restitution of all monies paid to
Defendant as a result of unlawful, deceptive, and unfair business practices;
E. Award Plaintiffs and Class members actual, compensatory damages as
proven at trial;
F. Award Plaintiffs and Class members reasonable attorneys’ fees, costs,
and pre- and post-judgment interest;
G. Restitution, including at the election of Class members, recovery of the
purchase price of their Coastdown Cheating Vehicles, or the overpayment or
diminution in value of their Coastdown Cheating Vehicles; and
H. Such other or further relief as may be appropriate.
DEMAND FOR JURY TRIAL
Plaintiffs hereby demand a jury trial for all claims so triable.
010825-11/1171942 V1 - 216 - Case 2:19-cv-12427-TGB-APP ECF No. 1 filed 08/16/19 PageID.225 Page 225 of 225
DATED: August 16, 2019 Respectfully Submitted,
By: /s/ Steve W. Berman Steve W. Berman HAGENS BERMAN SOBOL SHAPIRO LLP 1301 Second Avenue, Suite 2000 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 [email protected]
Robert C. Hilliard HILLIARD MARTINEZ GONZALES LLP 719 S. Shoreline Boulevard Corpus Christi, Texas 78401 Telephone No.: (361) 882-1612 Facsimile No.: (361) 882-3015 [email protected]
Jeffrey S. Goldenberg GOLDENBERG SCHNEIDER, L.P.A. One West 4th Street, 18th Floor Cincinnati, OH 45202 Telephone: (513) 345-8291 Facsimile: (513) 345-8294 [email protected]
Jason Thompson SOMMERS SCHWARTZ, P.C. One Tower Square, Suite 1700 Southfield, MI 48076 Telephone No.: (248) 355-0300 [email protected]
Counsel for Plaintiffs
010825-11/1171942 V1 - 217 -